Country Analysis: United Kingdom
By: Bryan Hutton & Adam Long
Throughout this project, our aim was to comparatively analyze the similarities and differences in disability law among the United Kingdom, The United States, and The United Nations. In doing so, we found that while although subtle differences clearly exist, many of the policies surrounding disability law are quite similar. We decided to focus on the United Kingdom and its disability policies dealing with employment discrimination in order to compare The United States’ similar policies with another western democracy.
In order to get ourselves acquainted with disability issues in the United Kingdom, we first researched various statistics dealing with disability employment. We quickly found that nearly 1 in 5 (19%) of people in the United Kingdom has a disability and of those 19%, only half of those who are of working age are employed. This number is quite shocking compared to the 80% of non-disabled people of working age who are currently employed. Lastly, it is found that there are 1.2 million disabled people in the United Kingdom who are willing and ready to work. Despite these rather disappointing statistics, the employment rate of disabled persons has risen by almost 10% from 1998 to 2006. Much of this is due to the United Kingdom’s Disability Discrimination Act (DDA) of 1995 which is their most important piece of legislation dealing with disability discrimination.
The DDA of 1995 was introduced with the intention of comprehensively tackling the discrimination many disabled people face today. The DDA makes it unlawful to discriminate in employment on the basis of one’s disability. However, after reasonable adjustments have been made by the employer, (s)he is allowed to enforce adequate performance. In addition to imposing obligations on employers, the DDA 1995 places duties on service providers and requires "reasonable adjustments" to be made when providing access to goods, facilities, services and premises. It is also important to note how all disability legislation defines both ‘disability’ and ‘discrimination’ as it plays an immense role in policy practice. In the DDA ‘disability’ is defined as: “A physical or mental impairment which has a substantial and long-term effect on his or her ability to carry out normal day-to-day activities;” ‘discrimination’ is defined as: “For the purpose of employment, an employer discriminates against a disabled person if: for any reason which relates to the disabled person’s disability, he treats him less favorably than he treats or would treat others to whom that reason does not or would not apply and he cannot show that the treatment in question is justified, [or] failure to make reasonable accommodations.” Using these definitions, the DDA mandates that one cannot be discriminated on the basis of disability in employment during the hiring process or during employment. In order to promote equality among employees, there are also many ‘reasonable steps’ an employer must take.
The DDA has very specific guidelines as to the ‘reasonable steps’ an employer must take in order to ensure that disabled persons are not at a substantial disadvantage with non-disabled persons. An example of a ‘reasonable step’ an employer may have to make is adjustment of the premises to accommodate a disabled person. This mainly includes alteration of physical structures in order to increase accessibility by a disabled person. However, it can also include other types of accommodations including allocation of work to other employees, alteration of working hours, modification of training or references manuals, providing a reader or interpreter, and even allowing him/her time off for necessary rehabilitation treatment. One exemption, however, is that of small business. If a business has 20 or less employees, they are not required to adhere to these reasonable accommodations. In order to expand our understanding of the DDA we looked for specific litigation. In doing so, we found two important cases that dealt directly with the DDA of 1995.
The first case we looked at was Coleman v. Attridge Law and Steve Lawwhere Coleman worked as a legal secretary and gave birth in 2002 to a disabled son for whom she was the primary care giver. She claimed in 2005 that the firm had discriminated against her, treating her less favorably than employees with non-disabled children. The Advocate General of the European Court of Justice (ECJ) has said that the Equal Treatment Directive should apply not only to the disabled, but also people associated with them, such as care givers. Although the case was brought under disability discrimination law, the Advocate General has indicated that the same principle would also apply to any of the other grounds of discrimination – age, religion or belief, sex, sexual orientation and race. This “opinion” is not binding on the ECJ, which will decide the case later in the year for itself, but it usually follows the Advocate General’s opinion. If it does, then the case will have to come back to the tribunal that referred it to the ECJ to decide if it can interpret the Disability Discrimination Act in the same broad manner. We also researched Dunham v. Ashford Windowswhere Dunham, an employee of Ashford Windows had “severe reading and writing difficulties” and was fired in December 2002. A consultant educational psychologist said he had 'generalized learning difficulties causing a cognitive or mental impairment.' In the case of learning difficulties the Employment Appeals Tribunal saw no reason why essential evidence establishing the nature of the condition could not be provided by a suitably qualified psychologist rather than a doctor. There is no difference between mental impairment, consisting of learning difficulties or disability, and mental illness. Both of these cases demonstrate the United Kingdom’s willingness to interpret the DDA fairly broad in order to help protect disabled persons from employment discrimination.
It is also important to note the main legal enforcement behind the DDA of 1995: The Disability Rights Commission Act (DRC) of 1999. The DRC of 1999 provided a legal body to help those who have been discriminated against on the basis of disability seek remedy. Their main goal is to review the DDA of 1995, assist disabled persons by offering legal information, and advice on how to best progress a discrimination case. The DRC provides legal remedy through formal investigations. With the permission of the Secretary of State, the commission may conduct an investigation to decide if discrimination has occurred. If discrimination is found, a notice is filed including recommendations to the person concerned as to action which the Commission considers he could reasonably be expected to take in order to comply with the requirements of the DDA 1995. If the Commission feels that unless the person concerned is restrained, he is likely to do one or more unlawful acts, the Commission may apply to a county court for an injunction, or to the sheriff for court order, restraining him from doing so. This is an important aspect of the DDA of 1995 as it allows for clear legal enforcement of its protections. After analyzing the DDA and DRC, we comparatively analyzed it to the United States’ Americans with Disabilities Act of 1990.
Since the DDA of 1995 is modeled after the ADA of 1990, the documents are quite similar. Both define “disability” as a physical or mental impairment which has substantial affects on a person’s “day-to-day” (DDA) or “major life” (ADA) activities. Both mandate “reasonable accommodations” (ADA) or “reasonable steps” (DDA):Reasonable modification to physical structures to allow accessibility, job restructuring of marginal duties, modified working hours, modifying work equipment, modifying examinations and training, and providing readers or interpreters. Furthermore, both documents mandate that an employer cannot discriminate on the basis of disability and employers are not required to make these reasonable accommodations if it imposes a large financial burden on the company. Despite these various similarities, we also find differences among the two documents.
First of all, the DDA does not impose 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, in the case of an applicant or potential applicant, that the disabled person is, or may be, an applicant for the employment, or in any case, that that person has a disability.
Also, the ADA regulations only affect businesses with more than 15 employees, whereas the DDA regulations only affect businesses with more than 20 employees. These two main concepts are the only extravagant differences between the DDA and ADA. However, there are more differences found among the DDA and the UN Convention in its disability policies.
Throughout both the UN Convention and the DDA, they advocate that employment decisions cannot be made solely on the basis of disability. Also, both advocate equal opportunity in the working environment and enabling individuals with disabilities access to necessary training for employment. Both ensure that reasonable accommodations are provided to individuals with disabilities in the work place and that employers provide professional rehabilitation necessary for job retention. Their differences, however, are more obvious than they are between the DDA and ADA.
The main difference we see is that the DDA of 1995 is ‘hard-law’ which means there is direct legal enforcement of its policies. The UN Convention is ‘soft-law’ and therefore its policies must be implemented into domestic law before there can be direct legal remedy. Furthermore, the UN Convention does two things the DDA does not: it promotes the ideal that disabled persons should be forced to do compulsory labor and it also promotes opportunities for self-employment among disabled persons. These three components provide drastic differences between the DDA of 1995 and the UN Convention.
Although there are subtle differences between the United Kingdom’s DDA and the United States ADA, the two documents are very similar in doctrine. They both seek to eliminate discrimination in employment on the basis of disability, as well as proscribe regulations which promote equal opportunity in the workforce. The UN Convention similarly promotes equal opportunities for individuals with disabilities and also seeks to eliminate discrimination based on disability. As an international document the UN Convention is far reaching and further promotes the idea of equality. However, all three documents demonstrate the important ideal of eliminating disability discrimination and promote the equal opportunities individuals with disabilities deserve.
References:
- Disability Discrimination Act 1995
- Disability Discrimination Act 1999
- UK's Office for National Statistics' Labour Force Survey,
- Sept - Dec 2006, for people of working age only.
- Americans with Disabilities Act 1990
- United Nations Convention on the Rights of Persons with Disabilities
- Coleman v Attridge Law and Steve Law
- Dunham v Ashford Windows