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Discriminating evidence

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technical & practice - The final part of the DDA comes into force in just three months and relates to every office's employment practices

Draft regulations laid before parliament on 8 May 2003 made significant changes to the employment provisions of the Disability Discrimination Act (DDA). The regulations, which implement a European Union Directive, bring within the scope of the DDA a further one million small employers, about seven million additional jobs, and 600,000 disabled people who already work in them. This is because the final part of the DDA applies to all employers, regardless of the number of staff that they employ (see box opposite for major changes to the provisions).

A new code of practice, brought out by the Disability Rights Commission in April 2004 to accompany the act, clarifies the law as it will stand when it comes into force on 1 October 2004, establishing a general framework for equal treatment in employment and occupation. Because it is printed in large font it runs to 200 pages, although it is quite a quick read.

Some of the creeping terms of the act are onerous in their indeterminacy. For example, section s4(1) clause 3.18 states that under the act 'it is unlawful for an employer to discriminate against a disabled person? by refusing to offer? the disabled person employment'. What the test case implications of many clauses like this will be can only be guessed at. Forms of discrimination include direct, indirect and perceived discrimination.

Harassment is covered under the act and is defined as conduct relating to another person's disability that violates the disabled person's dignity or creates an 'intimidating, hostile, degrading, humiliating or offensive environment for him (sic)'. In one of its worked examples, harassment can occur without the victim being present and, most importantly, regardless of intent, harassment will be determined by the perception of the disabled person. In this way, an employer could call a disabled person names in the privacy of their own home, have the incident reported to the disabled person, who only needs to complain that he or she perceives this behaviour to be intimidating, for the employer to fall foul of the law. In terms of this example, the employer (or it could be another employee) shall be found guilty of harassment if he or she 'fails to prove that he (sic) did not act in that way' (s17A(1C) 4.42).

Employers must make 'reasonable adjustment' to their premises or services. The boxed worked examples throughout the document will undoubtedly provide clear guidance to test-case legislation. However, even though the document overall is a recipe for increased, and perhaps malicious, litigiousness, the need for an employer to make reasonable adjustment 'will depend on a number of things, such as cost and effectiveness'. There is no onus on the disabled person to make suggestions.

Surprise surprise, the code suggests that employers might wish to ask an 'external training company to run training sessions for staff? The external training company might be one run by disabled people'. Jobs for the (sic) boys, maybe.

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