Developing the UK’s Disability Legislation.

NelsonThis is the first of a series of articles on disability related employment legislation.  In this article I look at the background, history and sources of disability legislation in the United Kingdom.

The Disability Discrimination Act 1995 introduced for the first time in the United Kingdom individual employment protection for disabled persons.  Since then, legislation has been modified to deal with both individual and strategic enforcement, as well as development through case law to construct meaning out of complex legislation, however not always with favourable results. Despite the time that has elapsed since this first legislation was introduced, disabled persons are still not fully participating in employment when compared to those without disabilities.

In order to gain protection a person must satisfy a medical model definition of disability, which has changed little since 1995, before any protection may be considered.  The Equality Act 2010 provides protection from ‘discrimination’ in the form of ‘discrimination arising from a disability’ and an employer’s ‘duty to make adjustments’ but elsewhere relies on the established symmetrical approach to equality which applies to other protected characteristics in order to achieve substantive equality for disabled persons in the workplace.

In his forward to the 2005 report “Improving the Life Chances of Disabled People” Tony Blair commented that “Disabled people remain more likely to live in poverty, to have fewer educational qualifications, to be out of work and experience prejudice and abuse.”[i] The Equalities Review’s final report of 2007 quantified this to some extent in that a disabled person was 29% less likely to be in work than a non-disabled person in otherwise similar circumstances and that this gap had increased from below 20% in 1975.  The Equalities Review concluded, as a group, disabled persons have been the subject of a ‘persistent employment disadvantage’ with disabled persons being less likely to be in work, more likely to leave work and less likely, once out of work, to regain employment, not only when compared to non-disabled persons but also other minority groups[ii].  Since the Equalities Review the Equality Act 2010 has been introduced, which now provides the basis for employment related discrimination protection in the United Kingdom[iii].

Although there has been a range of legislation which has impacted on the integration of those with disabilities into society, such as the Chronically Sick and Disabled Persons Act 1970, there was little direct intervention into the employment relationships involving disabled persons until the introduction of the Disability Discrimination Act 1995, and prior to this there was no legislation prohibiting discrimination against disabled people.   Although such areas as education, transport, welfare and independent living all have a direct effect on the ability of persons with disabilities to participate to their full potential in employment, these matters and their associated legislation are not considered further in this analysis, which centres on the legislation which is specific to employment.

The Disabled Persons (Employment) Act 1944 was the United Kingdom’s first legislation which attempted to provide employment protection to those with disabilities and was a direct response to the large numbers of disabled service personnel in society as a result of two world wars[iv].  The focus of the Disabled Persons (Employment) Act 1944 was to put in place the requirement that, for employers of 20 or more employees, 3% of the workforce must be registered disabled.  This legislation differed in two important ways from the legislation currently in place under the Equality Act 2010: Firstly, although there was some minimal individual employment protection with regard to dismissal, failure to meet the quota was enforceable by criminal sanctions against the employer rather than conveying any specific individual rights and secondly an individual needed to be registered as disabled rather than reliance on a definition of disability or the interpretation of the courts[v].  It was generally consider that the Disabled Persons (Employment) Act 1944 was ineffective; partly because of the lack of enforcement but also the criteria for registration were applied in an overly prescriptive way and as a result excluded many people who were genuinely disabled[vi]. In the European Union the use of quota systems for the employment of disabled persons remain relatively common, most notably France, Netherlands, Germany and Italy where quotas range between 5% and 7% and are supported by additional enforcement legislation.

The Disabled Persons (Employment) Act 1944 provided a definition of a disabled person as one which “on account of an injury, disease, or congenital deformity, is substantially handicapped in obtaining or keeping employment, or in undertaking work on his own account, of a kind which apart from that injury, disease or deformity, would be suited to his age, experience and qualifications.”[vii]  This definition of disability, as with that found in the Equality Act 2010, focuses on the medical aspects of impairments and as such is considered as a medical model of disability.  An alternative is the social model of disability, where it is asserted the barriers which limit those with impairments are put in place by an able-bodied society in general and that these limiting barriers derive from both the society’s physical construct and people’s attitudes[viii].  Although predominately focused on a medical model, the Equality Act 2010 [ix] does have elements which fall into a social model of disability, as with the areas of protection provided for the conditions of cancer, HIV infection and multiple sclerosis which are considered disabilities without the need for the manifestation of any physical or mental impairment.  A wider social model of disability may be found in the United Nations Convention on the Rights of Persons with Disabilities[x] which although was ratified by the United Kingdom in June 2008[xi], has not effected the over reliance in the United Kingdom on a predominately medical model for the basis of protection in the area of employment.

The impetus for the introduction of revised disability legislation in the form of the Disability Discrimination Act 1995 came from the United States where a civil rights approach was adopted to discrimination legalisation and introduced protection for those with disabilities, firstly with the Federal Rehabilitation Act 1973 and later the Americans with Disabilities Act 1990.   As well as providing for protection from discrimination the American approach also created obligations on the Federal Government to provide positive action programmes which extended to cover compliance from those private enterprises providing contracted services to public entities[xii].

In the United Kingdom, despite the European Council Recommendation of 1986 regarding the employment of those with disabilities[xiii] and major developments around the world such the extension of legislation in the United States in 1990[xiv] there was a general reluctance by the Government to extend discrimination legislation to cover those with disabilities. The opposition to the introduction of legislation was quite open and as late as 1993 the then Prime Minister, John Major stated that there were “No plans to introduce generalised anti-discrimination legislation because we foresee problems in both approach and implementation”, and that general education and persuasion was considered the best approach.[xv]

In the period up until 1995 there were 16 private member bills which attempted to introduce disability legislation[xvi], the final attempt, the Civil Rights (Disabled Persons) Bill was defeated by the Government through filibustering by the ex-disability minister Nicholas Scott. The public outcry, helped along by Scott’s daughter, forced the Government’s hand to move and led to the introduction of the Disability Discrimination Act 1995.[xvii]  This approach was not welcomed by everyone as it was seen as a watering down of the Civil Rights (Disabled Persons) Bill and it was argued in the House of Commons that disabled persons did not want patronising help, they wanted civil rights[xviii]. This included the exclusion in that companies of fewer than 20 employees were excluded from the legislation even though at the time this accounted for 96% of companies and 37% of the workforce.[xix]

From a European perspective, in 1997 the Treaty of Amsterdam’s introduction of Article 13 TEC (Article 19 TFEU) provided the Council of the European Union the ability to expand the principle of equal treatment to include a range of protected characteristics including disability, which was enabled under the Framework Employment Directive (2000/78/EC)[xx] [xxi].  This led to a number of amendments which increased the protection available from the existing legislation through the Disability Discrimination Act 1995 (Amendment) Regulations 2003[xxii].[xxiii]   As well as these regulations, the Labour Government of 1997-2010 also introduced a number of legislative changes which impacted on the effectiveness of disability employment protection.  The Disability Rights Commission Act 1999 established the Disability Rights Commission which was amalgamated into the Commission for Equality and Human Rights (EHRC)[xxiv] in 2007 following the Equality Act 2006, and the Disability Discrimination Act 2005 introduced a public sector equality duty in the area of disability.  Finally, the coalition Government introduced, the Equality Act 2010, developed during the previous Labour Government’s term of office, on 1 October 2010.  Despite the wide range disability centred legislation being introduced since 1995, Amartya Sen’s ‘penalty of disablement’ remains in place and the latest Equality and Human Rights Commission review confirms that disabled persons remain seriously disadvantaged in employment, education and income.[xxv]

The Equality Act 2010 prohibits discriminatory behaviour based on a range of protected characteristics with disability being one of these.  Disability differs from all other protected characteristics as it is normally clear which facet of a characteristic a person has, such as being either male or female with regard to gender, having a particular racial ethnicity or falling within a particular age group.  With disabilities it may not be obvious that an individual has a particular disability and the wide range of types and severity of potential disabilities adds to a level of complexity and confusion as to what actually constitutes a disability.  The Equality Act 2010 provides a statutory definition of a disabled person and the effectiveness of this definition will be considered in my future articles.

The Equality Act 2010 recognises that formal equality of those with disabilities would not lead to substantive equality and as such provides for the acknowledgement and meeting of the specific needs of disabled persons[xxvi].  The Equality Act 2010 takes a uniform approach and provides four areas of protection across the included protected characteristics; direct discrimination, indirect discrimination, harassment and victimisation. For the protected characteristic of disability there is additional protection provided in the form of discrimination arising from a disability and the duty to make adjustments.  In future articles on disability discrimination I will consider the protection available to disabled persons provided by the Equality Act 2010.   When considering the effectiveness of protection it is important to consider how the rights are asserted.

Jim Taylor LLM

 

 

 

[i] Prime Minister’s Strategy Unit, “Improving the Life Chances of Disabled People, Final Report” (London, HMSO, 2005) available from http://webarchive.nationalarchives.gov.uk/+/http:/archive.cabinetoffice.gov.uk/Media/cabinetoffice/strategy/assets/ disability.pdf accessed on 21 December 2012

[ii] The Equalities Review, “Fairness to Freedom: The Final Report of the Equalities Review” (HMSO, 2007) available from http://webarchive.nationalarchives.gov.uk/20100807034701/http:/archive.cabinetoffice.gov.uk/equalitiesreview/upload/assets/www.theequalitiesreview.org.uk/equality_review.pdf accessed on 20 December 2012 p63-65

[iii] Excluding Northern Ireland

[iv] Lord Wedderburn, The Worker and the Law, 3rd Edition (Penguin, 1986) p456

[v] Lord Wedderburn, The Worker and the Law, 3rd Edition (Penguin, 1986) pp456-457

[vi] Sandra Fredman, Discrimination Law, 1st Edition (Oxford, 2002) pp58-59

[vii] The Disabled Persons (Employment) Act 1944 s.1(1)

[viii] Colin Barnes, Mike Oliver and Len Barton, Disability Studies Today, 1st Edition (Polity, 2002) pp38-39

[ix] The Equality Act 2010, sch.1 para.6

[x] United Nations, “Convention on the Rights of Persons with Disabilities and Optional Protocol” (New York, December 2006) Available from http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf accessed on 21 December 2012

[xi] Bob Hepple, Equality, the New Legal Framework, 1st Edition (Hart, 2011) pp34-35

[xii] Simon Deakin and Gillian Morris, Labour Law, 5th Edition (Hart, 2009) pp654-655

[xiii] Council Recommendation 86/379/EEC of 24 July 1986 on the employment of disabled people in the community, Official Journal of the European Communities L225, 12 August 1986 pp 43-47

[xiv] Americans with Disabilities Act 1990

[xv] HC Deb, vol 217,col 485 (Mr J Major) 22 January 1993

[xvi] Sandra Fredman, Discrimination Law, 1st Edition (Oxford, 2002) p58

[xvii] Gwyneth Pitt, Employment Law, 7th Edition (Sweet and Maxwell, 2009) pp68-69

[xviii] Glenda Jackson MP, HC Deb 15 July 1994 Vol 246 cc1296-1307 at 1305

[xix] Robin Corbett, HC Deb 24 November 1994 vol 250 cc740-56 at 755

[xx] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment an occupation, Official Journal of the European Communities L303, 2 December 2000 p16-22

[xxi] Josephine Steiner and Lorna Woods, EU Law, 10th Edition (Oxford University Press, 2009) p157

[xxii] Disability Discrimination Act 1995 (Amendment) Regulations 2003 SI 2003/No.1673

[xxiii] Simon Deakin and Gillian Morris, Labour Law, 5th Edition (Hart, 2009) pp654-655

[xxiv] The Commission for Equality and Human Rights is currently promoting itself as the EHRC

[xxv] Nick O’Brien, “’The Good Life’: Learning Disability, Equality, and Healthcare in the UK.” (2011) The Equal Rights Review Volume 6 pp83-98 at p84

[xxvi] Bob Hepple, Equality, the New Legal Framework, 1st Edition (Hart, 2011) p72

The opinion given in this article is for general information only and is intended to illustrate and highlight themes which may affect employers and their employees. It should not be taken as specific advice on any situation or the appropriate course of action for any particular company or employer. Should you wish to discuss a similar situation or any other matter please contact Ascent HR Limited. ©Ascent HR Limited.

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