Ten years of the Disability Discrimination Act: Anniversary research indicates qualified failure

The Public Interest Research Unit (note 1) today, 8 November 2005, publishes a major study on a decade of the Disability Discrimination Act (passed on 8 November 1995). Free media copies of the 190 page report are available on request (note 2).

The research found that the Disability Discrimination Act has, since 1995, enabled several thousand people to gain some financial redress at the Employment Tribunals. It concludes, however, that the Act has failed to adequately tackle and reduce employment discrimination.

Instances of employment discrimination remain common; prejudice is widespread and sometimes extreme; institutional discrimination was apparent in all the organisations studied; employment and wage levels are significantly lower among individuals with disabilities; and discrimination continues to damage health and the quality of life.

Identified contributions to limited success

The research identified a number of factors as helping to explain the limits to the success of the Disability Discrimination Act (DDA) employment provisions.

Employees are unlikely to make a claim

Identified reasons for this include:

  • A low level of awareness of the DDA among employees and a poor understanding of it among trade union officials.
  • Substantial obstacles to making a claim. These include, for example, problems getting initial advice, serious illness making it hard to submit the originating application on time, the fear of victimisation, and a low expectation of success.

Claims are unlikely to succeed

In 2004-2005, 236 DDA employment claims succeeded at tribunal; 4,437 were dropped, settled through ACAS, or failed at tribunal (note 4). Reasons for the relatively low success rate appear to include:

  • The Disability Discrimination Act is remarkably tolerant towards many types of discrimination. For example, it provides no protection (except in the case of victimisation) for individuals who suffer severe discrimination but do not fit its quite narrow definition of ‘disabled’ (see para. 3.1.3 of report for the definition).
  • The system for selecting tribunal panels, compared to that for selecting judges, results in a much greater potential for legal ignorance and a greater potential for bias. A substantial number of claimants appear to have lost as the result of incorrect, and sometimes inept, interpretations of the legislation.
  • Many claimants have no professional legal help or representation. The ‘legal representation’ level of Community Legal Service funding is not available for cases in Employment Tribunals (probably in breach of the Human Rights Act); PIRU found that the Disability Rights Commission supported just 12 individuals in taking employment cases to tribunal or court in 2004-2005; and other forms of free help are scarce.
  • The impact of a disability may make it impossible to continue with a case or difficult to win. For example, some blind claimants were unable to find important information in accessible formats.

Employers are unlikely to be deterred

Identified reasons for this include:

  • Employers wrongly assuming that the employment provisions of the DDA do not apply to them; over-estimating the potential costs of compliance with the Act and underestimating the potential benefits, such as, in particular, improved staff retention and morale; and perceiving there to be only a small likelihood of having a claim made against them.
  • The Disability Rights Commission not being an effective enforcement agency for Part 2 (employment field) of the DDA. Its enforcement powers are limited, and PIRU’s research suggests that it makes limited use of those which it has.
  • Is the Disability Discrimination (Amendment) Act 2005 likely to resolve the problems?
    The amendments do not address the Act’s fundamental weaknesses. In practice, the DDA may be beyond reform.

The definition of disabled continues to exclude

  • The definition continues to exclude a large percentage of individuals with severe, life-limiting, impairments; and to discriminate against those with particular illnesses and disabilities.
  • Individuals with mental health impairments will, in general, still find it much harder, than individuals with physical impairments or learning difficulties, to meet the definition of ‘disabled’.
  • The amended Act provides that someone with cancer (unless of a prescribed description), HIV or multiple sclerosis will be protected under the Act as soon as diagnosed. The Government, however, has given no convincing explanation as to why this protection has not been extended to all progressive conditions (such as motor neurone disease). The failure to do so appears to constitute discrimination.

New ‘Duties of public authorities’ unlikely to be enforced

It is not clear that the duties will bring about dramatic, or even substantial, reductions in disability discrimination across the public sector. The potential impediments to success include:

  • The wording of the provisions is loose, ambiguous, and incomplete. For example, it is unclear how a public authority will be found to not have had ‘due regard’ to ‘equality of opportunity’ when there is no definition of what this term should be taken to mean.
  • Many organisations, which have a considerable impact on the lives of people with disabilities, will not be subject to the duties.
  • The ‘specific duties’ do not appear to add up to a comprehensive or coherent approach. In particular, the specific duties do not require that an organisation sets goals, objectives or targets.
  • There is little prospect of the disability equality duty being effectively enforced. Instead, it appears likely to function as guidance; which most public authorities will have the option of ignoring.
  • The enforcement model for the disability duties is designed to replicate that in place for the race equality duty, which has suffered, perhaps disastrously, from inadequate enforcement. For example, the Commission for Racial Equality has never taken a public authority to court for failing to comply with the Race Equality Duty (which came into force in 2001).

Possibilities for change

These include, for instance:

  • Legislation to cover discrimination (determined according to the reason for and consequences of an adverse action), not just discrimination against those who meet the definition of ‘disabled‘. At present, for example, an employee has no redress under the Act if his employer sacks him because he wrongly assumes that he has HIV (since he would not, in fact, be ‘disabled’).
  • The ‘legal representation’ level of Community Legal Service funding (‘legal aid’) to be available for cases in Employment Tribunals.
  • Protection from the point of diagnosis, provided for in the 2005 Amendment Act, to be extended to all progressive conditions and specified genetic dispositions (covering individuals who might have inherited particular illnesses).
  • The duties on public authorities to be extended, in modified form, to particular categories of private and voluntary sector organisation (which might encompass, for example, large supermarket chains).

Speaking today, a PIRU spokesperson said:

“The Act is remarkably tolerant towards discrimination. It’s not, for example, unlawful under the Act for an employer to sack an employee for having a genetic disposition to develop an inheritable condition such as Huntington‘s (as he or she would not yet be ‘disabled’)”.

“Even those who meet the narrow definition of disabled, and so might gain some protection under the Act, seldom have the resources to enforce their rights at an employment tribunal.”

“For those who can afford a solicitor for 12 months, the system sometimes works. For everyone else, it’s an affront to fairness and justice. How is someone with a severe learning disability, and no legal representation, expected to prepare and present a complex legal case?”

“Based on a largely discredited 1950s model of disability, the Act is probably beyond repair. We would like to see it replaced with a civil rights act which properly addresses discrimination.”

NOTES TO EDITORS

1. The Public Interest Research Unit was launched last year.

2. The report is entitled “The End of the Beginning – a critical analysis of the first decade of the Disability Discrimination Act employment provisions”. Free media copies of the 190 page report will be sent on request (tel. 01559 370 395 or 07957 471970). Non-media copies of the CD of the report can be purchased (tel. 01559 370395) for £10.

4. Employment Tribunals Service (2005) Annual Report and Accounts 2004-2005. London: TSO.

5. PIRU analysed 85 employment tribunal and court cases and documents from 40 public authorities (obtained using the Freedom of Information Act); interviewed lawyers, trade unions, employers and employees; and reviewed the existing literature.