Download ERA, TRIER, 8-9 DECEMBER 2008 and more Schemes and Mind Maps Law in PDF only on Docsity!
ERA, TRIER, 8-9 DECEMBER 2008
‘DISABILITY AND REASONABLE ACCOMMODATION’
DR NICK O’BRIEN, VISITING RESEARCH FELLOW, FACULTY OF LAW,
LIVERPOOL UNIVERSITY; LEGAL DIRECTOR, GB DISABILITY RIGHTS
COMMISSION 2000-
SECTION 1: OUTLINE OF CONTENTS
1. DISABILITY RIGHTS IN CONTEXT
- Welfare, benefits, quotas
- US civil rights movement
- Medical/social models
- Beyond equal treatment: ADA 1990 and DDA 1995
- Reasonable accommodation/reasonable adjustment
- Models of equality: non-discrimination; redistribution; diversity; social inclusion/participation
- Human rights framework
2. EU EMPLOYMENT FRAMEWORK DIRECTIVE 2000/78/EC
- Articles 1 and 2: the principle of equal treatment, and direct and indirect discrimination
- Article 5: the principle of reasonable accommodation
- Recital 17: competence, capability and availability
- Recital 20: appropriate measures
- Recital 21: disproportionate burden
3. UK DISABILITY DISCRIMINATION ACT 1995 (AS AMENDED)
- Less favourable treatment
- Direct discrimination
- Disability-related discrimination (but see House of Lords judgment in Malcolm v Lewisham Borough Council )
- Reasonable adjustment: provision, criterion or practice; physical features; justification; employer’s knowledge
- Relevant considerations
- Examples of reasonable steps
4. UK EXPERIENCE OF IMPLEMENTATION
- Archibald : the centrality of reasonable adjustment
- Signs of backlash: Malcolm and recent case law on reasonable adjustment (cf. US experience – the Sutton trilogy )
- The DRC statutory Code of Practice
- Monitoring the DDA: relatively high prevalence of reasonable adjustment claims and of success; most common adjustment: transfer to existing vacancy
5. THE EMERGING FUTURE CONTEXT
- UK Disability Equality Duty
- Coleman v Attridge Law : ‘association’ with a disabled person
- Chacon Navas : ‘sickness’
- UN Convention on the Rights of Persons with Disabilities
- Beyond employment rights
- The GB Equality and Human Rights Commission
SECTION 2: OUTLINE OF MAIN ARGUMENT
The aim of this lecture is to consider the place of disability rights within Directive 2000/78/EC and to illustrate that development of disability rights more generally by reference to the UK experience of implementing the Disability Discrimination Act 1995 (DDA). The paper seeks, in particular, to establish the link between the concept of ‘reasonable accommodation’, the new ‘equality paradigm’ that such rights represent, and human rights.
The history of disabled people in the western liberal democracies since the Second World War is one of movement from being regarded as objects of pity and potential beneficiaries of welfare to being seen as bearers of rights whose denial should be a cause of indignation.
The association of the disability movement in the USA with the civil rights movement in the 1960s and 1970s led in due course to the Americans with Disabilities Act 1990. At the same time, the established medical model of disability gave way to a new social model, which saw disability as a social construct, the result of a failure on the part of society to accommodate individual impairment.
It was not until 1995 that the DDA was passed in the UK. The DDA was significantly different from the well-established UK race and gender legislation. In particular, it was not equal treatment legislation at all but instead imported from the USA the notion of reasonable accommodation or reasonable adjustment, thereby establishing the need for employers and
SECTION 3: SOME KEY MATERIALS
A. COUNCIL DIRECTIVE 2000/78/EC
Article 1
Purpose
The purpose of this Directive is to lay down a general framework for combating discrimination on the grounds of religion or belief, disability, age or sexual orientation as regards employment and occupation, with a view to putting into effect in the Member States the principle of equal treatment.
Article 2
Concept of discrimination
- For the purposes of this Directive, the ‘principle of equal treatment’ shall mean that there shall be no direct or indirect discrimination whatsoever on any of the grounds referred to in Article 1.
- For the purposes of paragraph 1:
(a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation, on any of the grounds referred to in Article 1; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons having a particular religion or belief, a particular disability, a particular age, or a particular sexual orientation at a particular disadvantage compared with other persons unless:
(i) that provision , criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary, or (ii) as regards persons with a particular disability, the employer or any other person or organisation to whom this Directive applies, is obliged, under national legislation, to take appropriate measures in line with the principles contained in Article 5 in order to
eliminate disadvantages entailed by such provision, criterion or practice
Article 5
Reasonable accommodation for disabled persons
In order to guarantee compliance with the principle of equal treatment in relation to persons with disabilities, reasonable accommodation shall be provided. This means that employers shall take appropriate measures, where needed in a particular case, to enable a person with a disability to have access to, participate in, or advance in employment, or to undergo training, unless such measures would impose a disproportionate burden on the employer. This burden shall not be disproportionate when it is sufficiently remedied by measures existing within the framework of disability policy of the Member State concerned.
Recital 17
This Directive does not require the recruitment, promotion, maintenance in employment or training of an individual who is not competent, capable and available to perform essential functions of the post concerned or to undergo the relevant training, without prejudice to the obligation to provide reasonable accommodation for people with disabilities.
Recital 20
Appropriate measures should be provided, i.e. effective and practical measures to adapt the workplace to the disability, for example adapting premises and equipment, patterns of working time, the distribution of tasks, or the provision of training or integration resources.
Recital 21
To determine whether the measures in question give rise to a disproportionate burden, account should be taken in particular of the financial and other costs entailed, the scale and financial resources of the organisation or undertaking and the possibility of obtaining public funding or any other assistance.
B. UK DISABILITY DISCRIMINATION ACT 1995 (AS AMENDED)
3A Meaning of ‘discrimination’
(1) For the purposes of this Part, a person discriminates against a disabled person if –
(a) for a reason which relates to the disabled person’s disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and
(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know –
(a) in the case of an applicant or potential applicant, that the disabled person concerned is, or may be, an applicant for the employment; (b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1).
18B Reasonable adjustments: supplementary
(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to -
(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed (b) the extent to which it is practicable for him to take the step (c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities (d) the extent of his financial and other resources (e) the availability to him of financial or other assistance with respect to taking the step (f) the nature of his activities and the size of his undertaking (g) where the step would be taken in relation to a private household, the extent to which taking it would (i) disrupt that household, or (ii) disturb any person residing there
(2) The following are examples of steps which a person may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments –
(a) making adjustments to premises (b) allocating some of the disabled person’s duties to another person (c) transferring him to fill an existing vacancy (d) altering his hours of working or training (e) assigning him to a different place of work or training (f) allowing him to be absent during working or training hours for rehabilitation, assessment or treatment (g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person) (h) acquiring or modifying equipment (i) modifying instructions or reference manuals (j) modifying procedures for testing or assessment (k) providing a reader or interpreter (l) providing supervision or other support
C. GB DISABILITY RIGHTS COMMISSION CODE OF PRACTICE (EMPLOYMENT
AND OCCUPATION, AND TRADE ORGANISATIONS AND QUALIFICATIONS
BODIES) 2004
Some key headings
- Understanding the social dimensions of disability
- Recognising the diverse nature of disability
- Avoiding making assumptions
- Finding out about disabled people’s needs
- Seeking expert advice
- Planning ahead
- Implementing anti-discrimination policies and practices
- Auditing policies and procedures
- Monitoring
- Ensuring good practice in recruitment: attracting disabled applicants; promoting a positive image; use of the Disability Symbol
- Resolving disputes
D. UK DISABILITY DISCRIMINATION ACT 2005
3 Duties of Public authorities
In the 1995 Act, after section 49 there is inserted –
Part 5A
PUBLIC AUTHORITIES
49A General duty
Every public authority shall in carrying out its functions have due regard to –
(a) the need to eliminate discrimination that is unlawful under this Act; (b) the need to eliminate harassment of disabled persons that is related to their disabilities; (c) the need to promote equality of opportunity between disabled persons and other persons; (d) the need to take steps to take account of disabled persons’ disabilities, even where that involves treating disabled persons more favourably than other persons; (e) the need to promote positive attitudes towards disabled persons; and (f) the need to encourage participation by disabled persons in public life.
a time, and must have been well aware of the ground rules. But Lewisham’s reason for seeking possession – that Mr Malcolm had sublet the flat and gone to live elsewhere – was pure housing management decision which had nothing whatever to do with his mental disability. With some hesitation I would resolve this issue against Mr Malcolm.
- The problem of identifying the correct comparator is one which Mummery LJ examined with care and in detail in Clark v Novacold. The problem can be re-stated on the facts of the present case, assuming (contrary to the conclusion I have expressed [above]) that Lewisham’s treatment of Mr Malcolm was for a reason which related to Mr Malcolm’ disability. Are ‘the others’ with whose treatment the treatment of Mr Malcolm is to be compared (a) persons without a mental disability who have sublet a Lewisham flat and gone to live elsewhere, or (b) tenants of Lewisham flats who have not sublet or gone to live elsewhere, or (c) some other comparator group, and if so what?
- As I understand the judgment in Clark v Novacold, the correct comparison is said to be with group (b). But that I think is difficult to accept…
- A more natural comparison, as it seems to me is with group (a). On this analysis the comparison would fall to be made on the bases rejected in Clark v Novacold: with a person who had a dog but no disability, or a diner who was a very untidy eater but had no disability-related for eating in that way…[It would be attractive], if possible, to identify an intermediate comparator group (c) which would avoid absurdity and give fair effect to the statute. But I do not think that any such intermediate comparator group has been suggested, and none is identified by the statutory language. I find it hard to accept that Novacold was rightly decided. I am in any event satisfied that a different principle must be applied in the present context.
- I would accordingly, not without misgiving, hold the correct comparison in this case…to be with persons without a mental disability who have sublet a Lewisham flat and gone to live elsewhere. Mr Malcolm has not been treated less favourably than such persons. He has been treated in exactly the same way.
Baroness Hale
- This [case] raises questions about the fundamental principles underlying disability discrimination law. Is it intended simply to secure that disabled people are treated in the same way as other people who do not have their disability? Or is it intended to secure that they are treated differently from other people in order that they can play as full as possible a part in society whatever their disabilities?
- …in the light of the Parliamentary history, I do not think that it is possible, either to hold that Clark v Novacold Ltd was wrongly decided or to distinguish it on the ground that the same words mean something different
in the context of employment. They must mean the same throughout, however inconvenient the result may now appear to be.
- In reaching this conclusion I believe I am faithfully following the intention of Parliament. I am sorry to be disagreeing with your Lordships, but even more sorry that the settled understanding of employment lawyers and tribunals is to be disturbed as a result of your Lordships’ disapproval of Clark v Novacold.
H. BOTTA v ITALY [1998] 26 EHRR 241
‘Although the object of Article 8 is essentially that of protecting the individual against arbitrary interference by the public authorities…this provision may nonetheless, in certain cases, impose on those States positive obligations inherent in an effective respect for private life even in the sphere of the relations of individuals between themselves…Such positive obligations may exceptionally arise in the case of the handicapped [sic] in order to ensure that they are not deprived of the possibility of developing social relations with others and thereby developing their own personalities. In this regard, the Commission observes that there is no water-tight division separating the sphere of social and economic rights from the field covered by the Convention. This is an area in which a wide discretion must inevitably be accorded to the national authorities. Nevertheless, the crucial factor is the extent to which a particular individual is so circumscribed and so isolated as to be deprived of the possibility of developing his personality’.
I. PRICE v UK [2001] 34 EHRR 1285
In a civilised country…society considers it not only appropriate but a basic humane concern to try to ameliorate and compensate for the disabilities faced by a person in the applicant’s situation. In my opinion, these compensatory measures come to form part of the disabled person’s bodily integrity. It follows that, for example, to prevent the applicant, who lacks both ordinary legs and arms, from bringing with her the battery charger to her wheelchair when she is sent to prison for one week, or to leave her in unsuitable sleeping conditions so that she has to endure pain and cold – the latter to the extent that eventually a doctor had to be called – is in my opinion a violation of the applicant’s right to bodily integrity. The applicant’s disabilities are not hidden or easily overlooked. It requires no special qualification, only a minimum of ordinary human empathy, to appreciate her situation and to understand that to avoid unnecessary hardship – that is, hardship not implicit in the imprisonment of an able- bodied person – she has to be treated dif ferently from other people because her situation is significantly different’.
J. A, B, X AND Y v EAST SUSSEX COUNTY COUNCIL [2003] EWHC 167
True it is that the phrase [human dignity] is not used in the Convention but it is surely immanent in Article 8, indeed in almost every one of the Convention’s
The Grand Chamber
- Although…the person who is subject to direct discrimination on grounds of disability is not herself disabled, the fact remains that it is the disability which…is the ground for the less favourable treatment which she claims to have suffered…Directive 2000/78, which seeks to combat all forms of discrimination on grounds of disability in the field of employment and occupation, applies not to a particular category of person but by reference to the grounds mentioned in Article 1.
L. RECENT DDA CASES ON REASONABLE ADJUSTMENT
- Archibald v Fife Council [2004] UKHL 32: ‘an element of more favourable treatment’
- O’Hanlon v The Commissioners for HM Revenue and Customs [2007] IRLR 404: provided reasonable adjustments and rehabilitation offered, no duty to extend sick-pay coverage
- Nottinghamshire County Council v Meikle [2004] IRLR 703: a different story if reasonable adjustments have not been offered
- Mid- Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566: assessment a necessary pre-condition
- Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664: an alternative view
- Scottish and Southern Energy plc v Mackay UK EAT/0075/06: ‘we follow the Tarbuck line’
- Latif v Project Management Institute [2007] IRLR 579: evidence needed to show there was in principle an adjustment that could be made
- HM Prison Service v Johnson [2007] IRLR 951: need for sufficient detail and broad nature of adjustment proposed; cf. DRC Code, 5.24, ‘There is no onus on the disabled person to suggest what adjustments should be made (although it is good practice for employers to ask), but where the disabled person does so, the employer must consider whether such adjustments would help overcome the disadvantage, and whether they are reasonable’.
END
