If employees cannot do their jobs because they become disabled, they now have new rights and, from April, a commission to enforce them. What does this mean for employers?
Bob is a hod carrier for a bricklaying company. While on holiday, he damages his back and cannot lift heavy objects. He can no longer carry a hod. His employer, thinking that Bob cannot bring a claim for unfair dismissal (as he has only been working for the bricklaying company for six months), sacks him. Bob knows that he does not need one year's continuous employment to bring a claim and successfully sues the company in an employment tribunal for loss of earnings (actual and future) and injury to feelings under the Disability Discrimination Act 1995.

Bob might expect to get about £13 000 from the tribunal, but there is no upper limit on the amount of compensation that can be awarded to disabled persons; six-figure awards are not unheard of.

Although such claims are rare at the moment – a result of the lack of awareness of the rights conferred by the act – this may soon change.

A Disability Rights Commission is being set up with a remit to eliminate discrimination.

So, what rights does the act give to employees? It makes it unlawful to discriminate against disabled people in employment (even at the interview stage). A disabled person is defined as someone "with a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities". As such, a man with a bad back who is unable to lift heavy items may well fit within this definition if his ailment is long term (over 12 months).

Therefore, if an employer sacks someone with a bad back, it clearly treats them less favourably than someone without a bad back, and will be prima facie liable. The employer would be able to defend a claim only if it could show three things:

  • That its decision was justified

  • That it had considered what reasonable adjustments could be made to accommodate the disability

  • That its decision not to make adjustments was justified.

In the case of the hod carrier, the employer must consider what reasonable adjustments could be made to keep the employee employed. For example, it might think about altering his working hours or allocating some of his duties to someone else. What is a reasonable step will be decided by reference to the relative cost of the required adjustments and their effectiveness.

  • To dismiss lawfully, employers have to pass specific tests
  • The new disability commission will have the power to prosecute firms
  • Compensation has no upper limit

The risk of employers facing this type of claim is increased as a result of the new commission, which is due to be up and running in April 2000. Its main functions will be to work towards the elimination of discrimination against disabled people and to take appropriate steps with a view to encouraging good practice in their treatment.

It will have the power to carry out a general investigation into how disabled people are treated in a particular company or area of society. Importantly, the commission (like the Equal Opportunities Commission and the Commission for Racial Equality) also has the power to support and bring proceedings on behalf of employees. The DRC will serve only to heighten people's awareness of the problem and this could lead to an increase in the number of discrimination claims.

So what should Bob's employer have done before dismissing him? It should have carried out the following steps:

  • Decided that it could justify a decision to dismiss based on the requirements of the job

  • Considered whether it could make any adjustments to redeploy the disabled person elsewhere in the company

  • Considered alternative employment – was a desk job available?

  • Found out how bad the disability was and its prognosis

  • Consulted with the disabled person.