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Extended rights for workers on health grounds

The Issue

Serious health problems, including some mental health issues, are covered by the Disability Discrimination Act (“DDA”).

From today the scope of the DDA is extended so that:

  • for the first time, workers suffering from HIV, multiple sclerosis and cancer will benefit from automatic protection under the DDA from the date of diagnosis. Many more workers are now DDA protected at an earlier stage of the illness.
  • a mental impairment is no longer required to be a “clinically well-recognised” mental illness in order to qualify as a “disability” under the DDA.

In practice we find that a significant number of businesses are unaware of what the DDA covers.

Generally, DDA rights have never required a minimum length of service and there is no maximum level of compensation in DDA claims.

So, determining whether a person has a “disability” is key as it triggers a worker’s right to protection under the DDA, which imposes extensive obligations on employers:

  • to treat disabled workers more favourably than non-disabled workers, including by taking steps to prevent disabled workers suffering discrimination;
  • to prevent discriminatory acts in the course of employment by their employees against disabled workers, even where the employer knows neither of the discriminatory act nor the disability.

The Consequences

Even where illnesses such as HIV or cancer have not yet caused any incapacity, the worker is DDA protected by reason of the diagnosis alone.

Whilst for mental ill-health the four key qualifying criteria for DDA protection remain (including that of long term effect on ability to undertake everyday tasks), the medical criterion can now be fulfilled by very much more general terms such as “stress” or “anxiety”.

According to the British Medical Journal, depression and anxiety are cited as the most common reasons for sickness absence in the UK. Consequently, the change in mental ill-health criteria is likely to increase businesses’ need to comply with DDA obligations.

Both changes are likely to lead to an increase in the number of DDA tribunal claims.

The Solution

Businesses should:

  • have equal opportunities policies and tell staff that a breach of the equal opportunities policy will be a disciplinary matter.
  • provide managers with training in recognising and in preventing disability discrimination in the work place.
  • regularly review standard recruitment and employment procedures for discriminatory practices and disability bias.
  • obtain specialist legal guidance when any potential discrimination issue arises before they take steps they may later regret either in terms of staff management or claims cost.

Information in this e-alert is a guide only. We recommend that you seek professional advice before taking or refraining from any action. No liability accepted by the firm for any action taken or not taken as a result of this publication.