VSJ – October 2006 – Sounding Board

Ian JA Walker, FIAP is an IAP Council member and a person with a disability. He has been a wheelchair user since a car crash in 1991. Following Darren Brook’s  article last month, Ian looks at the broad issues of Disability Discrimination in the UK.

Darren’s thought-provoking article isn’t an isolated tale of someone with a disability enduring ill-treatment or lack of consideration because of their disability. My own experiences roughly mirror those he cites.

The issues of disability discrimination and employment are very complex and, sadly, there are no simple answers. As Darren points out, employers have duties and responsibilities under UK law and EU directives concerning people’s individual rights but that’s far from being the complete picture. An employer has a huge raft of obligations to adhere to when employing anyone, let alone someone with a disability. What follows stems from information available from the Disability Rights Commissioner, as I make no claim to legal expertise.

The Disability Discrimination Act 1995 was introduced by Government to protect and promote the rights of people with a disability to access to employment, goods and services in the UK. The Act imposes a duty on providers of employment, goods and services to make ‘reasonable adjustment’ to facilitate access to their offers by people who have a disability. So it’s now unlawful for an employer to discriminate against such a person on the grounds of their disability. However, that’s not the entire story.

Part of the problem, both for people with a disability and prospective employers, is that the term ‘reasonable adjustment’ is not defined. In essence, that is a metric that can ONLY be tested properly in the law courts. This creates, in my view, an unnecessarily combative environment for resolving issues where, perhaps, some good old-fashioned common sense by all parties is required.

The Disability Rights Commissioner advises that, “in employment, reasonable adjustments are changes made to working policies and practices and to the physical features of business premises/place of work, where these factors pose a substantial disadvantage to disabled people”. However, there are other considerations, such as Health and Safety. Whilst this must never be used as an excuse for discrimination, there can, depending on the circumstances, be genuine Health and Safety related reasons why an adjustment to the workplace or working practices is unreasonable. Under such circumstances the employer’s actions are lawful. However, the common advice to all employers in such situations is to obtain professional advice, both from Disability Employment Advisors and Health and Safety Advisors before a decision is made. Where the two sources of advice appear to conflict, particular care must be taken in making a balanced and fair decision. The Disability Rights Commissioner can provide general advice and guidance and produces some good information for employers and employees.

Not only is the legal framework very complex, but there are other factors involved in discrimination in the workplace where people with a disability are concerned. These include attitude, misconceptions and the huge raft of myths that float around society about medical conditions such as HIV, hepatitis, epilepsy, diabetes (and many, many more!). It is wrong to make blanket judgements. Yet attitudes and lack of general awareness of the facts about particular medical problems create the catalyst under which people often mistakenly, or intentionally, commit discrimination against other people.

Misconception and myth about the issues of disablement and medical conditions do not just exist amongst employers, co-workers and providers of services and goods. They exist across the board, including amongst some people with a disability. For example, some small employers still believe that the Disability Discrimination Act does not apply to them because they employ fewer than five people. Yet, since October 2004 (the last major upgrade of the Act) ALL employers are subject to the requirements of the legislation. Similarly, there are people with a disability who believe, wrongly, that the Disability Discrimination Act usurps all other legal duties that an employer may have. As I have already stated, there can be legitimate reasons why it is not reasonable to make a particular adjustment to working practices or environment.

From the IAP standpoint, I am of the view that providing any form of conciliation service for members could prove a nightmare because of the complexities involved. In any case, there are other services, such as the conciliatory services offered by the Disability Rights Commissioner and some Disability Employment Advisors. Any IAP provision would merely duplicate existing good practice. Perhaps there is scope for an IAP Fact Sheet for potential employers and for members of the IT Profession who have a disability to provide a good standard of basic information and guidance about alternative working practices, policies and ways of engaging IT professionals with a disability. However, such a publication is not easily compiled, given the complexity of each individual case. Every employer is unique and faces unique challenges. Similarly every employee is unique and presents unique challenges in the workplace that do not just revolve around disability. I am not for one moment, as a person with a disability, suggesting that people with a disability should always lose out, but that we  (and potential employers) often face irreconcilable challenges despite the best of intentions.  In such an environment it is not difficult to appreciate how difficult it is to arrive at the ideal outcome for all concerned.

Discrimination should have no place in a 21st century society. But, as it has existed for thousands of years it will probably last for a few more – or for as long as one person can see an advantage in discriminating against another, be that related to sex, race/culture, religion or disability.

You can contact Ian at iwalker@it4wales.co.uk.

[Something you’d like to get off your chest? Email me (Robin Jones) at eo@iap.org.uk.]

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