Press Releases

Ayr solicitor warns businesses in Scotland
about new disability discrimination laws

News release : 14 September 2004

EMPLOYERS across Scotland need a wake-up call to alert them to one of the most significant changes in employment rules ever to come into force, warns Scottish lawyer Norman Geddes, senior partner with Ayr-based Frazer Coogans Solicitors.

The impact of new provisions of the Disability Discrimination Act (DDA) that become law on 1 October will take many employers by surprise.

Until now, the provisions of the Act have applied to only those employers who have more than 15 employees. But, from 1 October, this duty will apply to employers with two or more employees.

The DDA provides employers with a clear command not only not to discriminate or harass a disabled employee, but also to act positively to make reasonable adjustments in their favour.

This means that an employer must do everything in his power to put a disabled person ‘on a level playing field’ with able-bodied colleagues.

There is no limit on the damages awarded in DDA cases.

A recent landmark ruling by the House of Lords has strengthened the employment rights of disabled people even further.

The law Lords unanimously ruled that there is a duty on employers to make reasonable adjustments for disabled people if they become unable to carry out the job they are in due to their disability. This duty includes considering whether it is reasonable to transfer the disabled person to another vacant post, even if that post is at a higher grade.

The Disability Rights Commission, who took the case to the House of Lords on behalf of Scots woman Susan Archibald, welcomed the decision.

DRC’s Scottish director Bob Benson said: “We are delighted that good sense has prevailed, and the Lords agree that the law is there to make sure disabled people are given equality of opportunity. This is fantastic news for disabled people everywhere, as it confirms they have the right, where it’s reasonable, to be transferred to a new job if they become disabled and can no longer carry out their existing job.”

The 38-year-old mother-of-four worked as a road sweeper with Fife Council from May 1997 until March 2001. In April 1999 complications following surgery caused severe pain in her heels, leaving her unable to walk. She initially used a wheelchair, and later was able to walk only with sticks.

She had previously worked as an administration assistant, and went for retraining to update her skills. She had to undertake competitive interviews in accordance with the council’s redeployment policy, and applied unsuccessfully for over 100 posts within various departments. In March 2001, the council dismissed her on the grounds of capability.

Mrs Archibald later successfully applied to Fife Council to become supervisor of a local community centre. DRC’s head of Scottish legal affairs Lynn Welsh said: “This appointment acknowledges that Mrs Archibald was capable of this level of job. Had the council transferred her to a similar post at the time, she would not have lost a substantial amount of earnings over a considerable period of time.”

Mrs Archibald complained she had been discriminated against on grounds of disability. She argued she should not have had to compete for alternative employment if she could show she could perform the duties and responsibilities of the post, and that her employers had failed to comply with a duty to make a reasonable adjustment under section 6 of the Disability Discrimination Act.

However, an employment tribunal dismissed her complaint, stating Fife Council had not failed to comply with any duty of reasonable adjustment. The Employment Appeal Tribunal dismissed an appeal, holding there was, in fact, no duty of reasonable adjustment on the employers at all.

The DRC appealed to the Court of Session, who ruled that an adjustment duty was not triggered by becoming physically incapable of carrying out the job, and that transfer to a different job was not a reasonable adjustment. The DRC then appealed to the House of Lords, who have ruled that the EAT and Court of Session were wrong, and that the case should be referred back to the employment tribunal.

Lynn Welsh said: “It was always clear to us that there was a duty on Fife Council to consider transferring Mrs Archibald into one of the 100 jobs she applied for, and that the Employment Tribunal were wrong to say this would have been more favourable treatment.”

Services

It is not only employers, but also providers of services of all kinds who will be subject to the new laws. The Disability Discrimination Act aims to end the prejudice which many disabled people face, and gives them rights in the areas of employment, access to goods, facilities and services and buying or renting land or property.

From October 1, pubs, clubs, gyms, swimming pools, hospitals, restaurants, shops and all service providers will have to make ‘reasonable adjustments’ to their premises or the way they provide their services so they are not unreasonably difficult for disabled people to use.

Disabled individuals will be entitled to financial compensation if they are affected by a breach of the act, which can range from wheelchair access to large print for the visually impaired.

Employment rights and initial rights of access were first introduced in 1996, when it became unlawful to treat disabled people less favourably for a reason related to their disability.

Further rights of access were introduced in October 1999, and next month’s changes, which now extend to businesses employing less than 15 people, will see the final rights of access put into place.

Some of the changes, such as installing ramps, toilets and lowering counters, will be costly – but the law states that only ‘reasonable adjustments’ have to be made, and takes into account the size of the business, the service it provides, and the resources it has available.

For more information on the Disability Discrimination Act and how it will affect you, visit the Disability Rights Commission’s website at www.drc-gb.org

If in doubt, seek professional legal advice.