2020 has been a rollercoaster year for many businesses, but also marks 25 years since the introduction of the Disability Discrimination Act 1995. We have been looking at what has happened during that time and how attitudes have changed in the workplace and in recruitment.

Since the 1995 Act law was implemented, making it unlawful to discriminate against individuals because they were disabled, the government has introduced various improvements to the law, enhancing rights not to be unlawfully discriminated against due to a disability. The Disability Discrimination Act also introduced a new concept in discrimination law – the duty to make reasonable adjustments for disabled employees and job applicants who are placed at a substantial disadvantage because of their disability. At the time this duty only applied to businesses employing 15 people or more and required employers to take positive steps to reduce the impact that a disability has on a person’s ability to effectively carry out their role. This now applies to all employers and case law has established that it applies when considering the suitability of a candidate who applies for a role as well as the incumbent.

In 2010, the Equality Act was introduced, which was a consolidating Act, intended to make nine pieces of primary legislation easier to understand in one place. It built and expanded on the existing legislation surrounding disability discrimination and also introduced discrimination by association and indirect discrimination relating to disability.

The definition of a disability was also tidied up within this legislation and, today, a person is disabled under the UK’s Equality Act if they have a physical or mental impairment that has a substantial and long-term negative effect on a person’s ability to carry out normal daily activities. Whilst this wording has not changed, as employers and employees have considered which conditions may be a disability, it has created vast case law establishing which conditions could amount to a disability and are therefore afforded protection by the legislation. The Equality and Human Rights Commission has also published a Code of Practice to supplement the legislation to provide clarity and guidance on how businesses are expected to meet their responsibilities.

One of the areas that has caused the most debate and consideration has been what does actually constitute a disability, and this has evolved and changed as have attitudes in the workplace in the last 25 years. The legislation does include conditions which are deemed disabilities, which effectively means that no consideration needs to be given to whether the definition in the legislation is satisfied but it is automatically considered a disability. These include conditions such as blindness and cancer.

For employers it is vital to consider each individual and their personal circumstances on a case-by-case basis when considering if they have a condition which may amount to a disability. For example, the European Court has established that the physical and mental conditions arising from obesity can amount to a disability in certain circumstances and it will depend on the extent and effect on the person. Recent case law has found that a stammer can also meet the legal definition of a disability, so employers need to be open to considering a wide range of conditions. These examples of recent case law demonstrate that employers need to remain aware of legal case law to understand how they are obliged to recruit their workforce and the support they are required to provide to employees.

Clearly, employers will need to act with particular sensitivity towards employees with potentially ‘hidden’ disabilities, for example depression and mental health conditions or dyslexia and other learning difficulties. The same definition applies to mental health conditions as physical impairments or conditions. Whether the condition amounts to a disability or not will depend on the individual’s condition and how it impacts them and their daily activities. In recent years employers have been faced with an increase in mental ill health issues in the workplace, which are capable of amounting to disabilities for the purpose of discrimination legislation.

During the last 25 years, workplaces have also seen significant changes in terms of attitudes towards disabled employees. Perhaps the expansion in conditions that can be protected has become known through media coverage of tribunal cases and has contributed to this change in attitude.

What do these various changes to legislation and attitude mean for employers? While there has undoubtedly been large improvements in equality for employees with disabilities over the last 25 years, it is still a pressing issue for businesses to consider and remain aware of if they want to have a diverse and effective team. Employers should ensure their internal practices have kept pace with changes and they have in place well drafted equal opportunities policies which set out the minimum expected standards of behaviour. Training for staff and managers to ensure ongoing compliance with the current law and the culture they want to have in the business is critical to ensure that disabled employees can be effective and supported team members in their workplace.

Pam Loch and Roisin Kavanagh are Employment Law Solicitors with Loch Employment Law

www.lochassociates.co.uk