Many important amendments to the Disability Discrimination Act 1995
(the "Act") will be brought in to force on 5 December 2005 by the
Disability Discrimination Act 2005. Significantly, the amendments to
the Act include the extension of the definition of disability to cover
cases of HIV, cancer and MS from the point of diagnosis and include
also the removal of the requirement that mental illness requires to be
"clinically well recognised".
HIV, Cancer and MS
Previously under the Act, it was necessary for people with HIV
infection, MS or cancer to show that their condition had an effect on
their ability to carry out normal day-to-day activities and was likely
to have a substantial adverse effect before it would constitute a
disability. The amendments to the Act provide that people who have been
diagnosed with HIV infection, MS or cancer will be deemed disabled for
the purposes of the Act from the point of diagnosis.
The reason behind widening the definition is that there is a stigma
that attaches to people who have HIV infection, MS or cancer from the
moment of diagnosis and it is therefore appropriate for the protections
in the Act to apply from that date. The Government has predicted that
this amendment will increase the number of people covered by the Act by
approximately 175,000. People who suffer from these illnesses will now
be protected against discrimination in the early stages of their
illness when they perhaps only suffer from minor impairments.
The Government had previously indicated that it would, if necessary,
use its power under the Act to exclude certain types of cancer from the
Act's protection. The reasoning behind this was that there are certain
minor cancers that can be quickly and effectively treated and it was
argued that these illnesses should not constitute disabilities.
However, the Parliamentary Under Secretary of State announced in the
Commons recently that, "following a review of evidence of the extent of
discrimination faced by people with more minor forms of cancer, we have
decided not to exercise the 2005 Act's regulation-making power which
would allow us to exclude certain types of cancer from automatic
coverage by the DDA". This decision will provide welcome clarity to
cancer sufferers on the rights they can expect to receive under the Act.
Mental Illness
The Mental Health Foundation has published statistics that show that
nearly 3 in 10 employees will have a mental health problem in any
one-year, the majority of which will be anxiety or depression related.
Absence from work because of mental illness is said to lose business 91
million working days a year.
Despite these statistics, it is only recently that employers have
begun to promote positive mental health policies. There still appears
to be a stigma attaching to mental health in the workplace and research
carried out recently by the See Me campaign found that 62% of people
who had been absent from work with mental health problems considered
that they were treated differently from those who were absent with
physical problems.
Section 18 of the 2005 Act removes Schedule 1(1) of the Act which
stated that mental impairments that would constitute "disabilities"
which included impairments resulting from or consisting of a mental
illness provided the illness was "clinically well recognised," thereby
levelling the playing field for those with physical and mental
impairments. Employees with mental impairments now only need to show
that their illness is substantial and has a long-term adverse effect on
their normal day-to-day activities for it to constitute a disability.
Some commentators have suggested that the removal of the requirement
that mental illness be "clinically well recognised" will not result in
a flood of mental health disability cases being referred to tribunal
because it will still be necessary to show that the impairment is
substantial and has a long-term adverse effect on the claimant's day to
day activities. If these two tests are satisfied, it is likely that the
illness will also be clinically well recognised. However, many
employers are fearful that the amendment will allow employees with
stress, anxiety or other nervous debility the opportunity to argue that
they have a disability and that they are entitled to protection under
the Act. This will inevitably create uncertainty in the minds of
employers who will now have the difficult task of judging whether
employees who present with stress or anxiety really have an illness
that is substantial and has a long term adverse effect on their normal
day-to-day activities whilst previously they could legitimately rely on
medical opinion that showed the stress or anxiety was or was not a
"clinically well recognised" illness.
Perhaps the importance of the change is not in its practical effect
but in its symbolic significance. Mental health disabilities are now on
an even footing with physical health disabilities and this shows a
strong commitment from Government to changing current attitudes to
mental health.
Conclusion
As with all new legislation the first few cases to be decided under
the Act will provide greater insight in to the effect of the
amendments.
Note: The Disability Discrimination Act 2005 will bring in to force the following on 4 December 2006:
- A duty on public authorities to promote equality
- An extension of the Act to functions of public bodies that are not already within its scope
- An extension of the duty to make reasonable adjustments to private clubs with 25 or more people
- An extension of the duty to make reasonable adjustments to the physical features of private clubs (subject to consultation)
- A provision to ensure that landlords cannot withhold
consent unreasonably for a disability related improvement to certain rented
dwelling houses.