What Counts as Disability?

Sherie Griffiths, Lawyer and Founder, Griffiths Legal Consultants assess the Disability Discrimination Act’s impact on employers

Throughout the first sixteen years of my career, I managed to avoid the whole issue of disability law. I was often told I ought to develop it as a specialism, but I was none too keen because it felt too much like playing to a stereotype – “Lawyer with disability” (I come complete with guide dog) “must do disability law”. Stereotypes and I have never got along, so I focused instead on personal injury.

Things changed in 2004, when I established Griffiths Legal Consultants (now Griffiths Legal Ltd). By now the DDA had been with us for almost nine years and we were due for a set of major amendments (including the abolition of the small business exemption). Organisations were clearly struggling with the old version of the Act – let alone the new! – especially the employment provisions. So I researched the subject thoroughly and set about developing a package of services to help them – and once I started, I soon came to realize what an interesting, human subject this area of law can be.

As a businessperson myself, I know how inherently unpopular anti-discrimination legislation is. This applies equally to the public and private sectors, both of which already feel themselves overburdened with legal duties – tied hand and foot with red tape. Every lecture, presentation and training course I deliver is different, because each group of people is different; but two questions pop up as regularly as Christmas.

The first question is:

“What counts as a disability under the DDA?”

The answer is found in a guidance document issued under the Act and takes elements from the traditional social and medical models of disability. That said, the Act itself leans heavily towards the social model – the idea that the challenges faced by people with disabilities arise from social barriers rather than obstacles created by the disability itself.

The guidance document is intended for courts and tribunals rather than employers or prospective employers. It is not for an employer or recruiter to try to decide whether or not an employee or candidate is disabled. However, it can be useful to have a working knowledge of the definition.

 

In brief, a person is disabled for the purposes of the DDA if they have:

• A physical or mental impairment which has a
• Substantial, long-term, adverse effect upon
• Their ability to carry out normal day to day activities.

“Long-term” is generally at least one year

“Substantial Adverse Effect” is “something more than minor or trivial” and

“Normal day-to-day activities” are things which people would generally do every day. The term may include aspects of employment, but it does not include specific types of work as no one type of work is “normal” for most people.

The second question, put plainly, is:

“What’s in it for us?”

That may sound harsh, but the vast majority of organizations are constantly juggling with limited resources, financial and otherwise – weighing costs against benefits, threats against opportunities. Unfortunately for the DDA and similar legislation, however compelling the moral arguments for compliance may be, it is traditionally seen as a cost; a threat.

I say “unfortunately” because there are proven commercial benefits attached to proactively taking this Act on board and incorporating it into the fabric of an organization:

A widening of the pool of potential job candidates, which

• Improves an employer’s chances of recruiting the best possible team, which
• Improves staff morale
• Enhances public profile and ultimately
• Improves the bottom line.

And now, the bottom line doesn’t just mean financial profit. The concept of the “triple bottom line” – measuring a business’s social and environmental impact as well as its economic performance – has for some years been a matter of voluntary regulation; but in 2006, it entered the statute books for the first time, as part of the new Companies Act. The larger the business the heavier the responsibility – but corporate social responsibility (CSR) is not restricted to the large corporates. It is a very live issue for all of us.

It is a cliche to say that it is impossible to legislate for attitudes – but statements only become cliche because they are true! Since I started lecturing, training and writing on this subject, I have met with some very “interesting” responses. Time and time again I have seen living proof of my theory that the widespread antipathy towards anti-discrimination law springs from one of humankind’s most basic fears – the fear of the unknown. Myths and legends have always abounded about disability – generalizations borne of assumption rather than knowledge – for instance:

• “Disability and illness go hand in hand” (so it follows that a disabled employee will be absent more than a non-disabled colleague)
• “Disabled people are prickly and defensive” or (just as wide of the mark)
• “They are brave and always smiling and they put the rest of us to shame”!

My favourite myth about the Act itself has to be:

“Well, it’s not real law, is it? It’s only a voluntary code”.

The pragmatic drafting of the DDA can make it difficult to predict which way a court or tribunal will go in a particular case, but it is as binding as any other law.

In my experience, the biggest problem employers have with the DDA is understanding the duties placed upon them, the distinctions between those duties and why those distinctions matter. My aim is always to translate the law into plain English – to demystify it. So I hoped to be able to go some way towards unscrambling the answers to those questions at the Disability Equality andWork conference which took place recently.

That same week saw the publication of my guide for employers – “Is the Disability Discrimination Act Working for You?”, which brings law and practice together.

Sherie Griffiths, Lawyer and Founder, Griffiths Legal Consultants
13 February 2007