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CHANGE IN LAW PUTTING SMALL COMPANIES AT RISK OF
UNLIMITED FINES
Many Unaware Of New Rights For Disabled Workers
There could be an imminent wave of new disability
discrimination claims against small firms, many of whom are unaware of a
significant change in the law this Friday. The law states that employers
with less than fifteen staff are no longer exempt from legislation that
protects employees with a disability.
The warning comes from Croner
Consulting, one of the UK's leading providers of business advice and
support, as amendments to the Disability Discrimination Act 1995 (DDA)
come in to force on 1 October.
From this date, the provisions of the
DDA will catch all employers irrespective of size. This means that
employees will be able to claim against their employer if they are treated
less favourably due to a disability, or if their employer fails to make
'reasonable adjustments' in the workplace to prevent them being placed at
a substantial disadvantage in their employment.
This is the most significant change in
law affecting small employers in recent years according to Richard Smith,
HR expert at Croner Consulting, which is part of Wolters Kluwer UK. He is
urging those affected to become acquainted with the Act, or they could be
facing unlimited fines for disability discrimination.
He says: "Owner-managers of small firms
are often too busy to keep up to date with changes in employment
legislation, but they will ignore this latest change at their peril as
disability discrimination is one of the few types of fines where the
compensation can be unlimited.
"Compensation for disability
discrimination is frequently in excess of £100,000 - a tribunal will not
be lenient for a smaller firm since the amount of compensation is based on
the injustice suffered by the claimant, rather than the employer's ability
to pay."
Croner Consulting is advising employers
that the main areas where they could slip up are during recruitment and
when dismissing an employee.
Richard says: "Individuals can bring a
claim even before they commence employment if they think they were not
offered the job due to a disability. Employers should make sure they can
prove that a decision not to employ them was reasonable on other grounds.
"When dismissing an employee who has a
disability, the employer must be able to prove that the dismissal was not
for this reason."
For example, where an employer is
considering dismissing an employee with more than one year's service who
is on long term sickness absence, the employer would have to, in any
event, follow fair procedures in order to avoid an Unfair Dismissal claim
succeeding.
Where the employee has less than one
year's service, if the real reason for the dismissal is the absence,
employers would be free to terminate the employee on notice without risk
of a claim - were it not for the DDA.
Richard says: "This is where employers
can get in to hot water, as the DDA applies irrelevant of length of
service. Providing employees can show that they are disabled, as defined
in the DDA, they will be able to claim discrimination if an employer has
dismissed them for a reason connected with that disability, such as their
absence.
"We would advise an employer to obtain
advice prior to taking any action against a disabled employee to minimise
the risk of a fine that could seriously damage their business." |
Who has rights under the Act?
The Act gives rights to people with "a physical or mental impairment that
has a substantial or long term adverse effect on their ability to carry
out normal day-to-day activities". There are some 10 million disabled
people in Britain - more than one in seven of the population.
The Disability Rights Commission estimates that there are around 830,000
disabled people in Scotland; again about 1 in 7 of the population. The law
gives protection from discrimination for people of all ages with mobility
and sensory impairments, learning disabilities, mental health conditions
and progressive conditions. It can cover people with heart disease,
diabetes, severe disfigurement, depression, schizophrenia, dyslexia,
epilepsy and Down's syndrome. Many of those who have rights under the
Disability Discrimination Act do not choose to use the term "disabled"
about themselves. Their rights are unaffected by this.
What is meant by "Services"
The Act says that "services" include "access to and use of any place which
members of the public are permitted to enter". Thus, a person who permits
"members of the public" to enter such a place is providing a service to
those people consisting of access to and use of that place.
What is a "reasonable adjustment"?
There is no definitive answer. The law uses this phrase to give some
flexibility and allow different solutions in different situations. What is
reasonable depends on a number of factors - most obviously the
size/resources of the service provider. A village hall will have different
requirements to the town hall or the banqueting suite in a large hotel.
What is reasonable will depend on the size and resources
of your particular service. It means installing a lift or installing new
toilets are inappropriate for the village hall or corner shop but may be
an absolute necessity for the hotel or town hall.
What is a physical feature?
Here is a long but not exhaustive list: steps, stairways, kerbs, exterior
surfaces and paving, parking areas, building entrances and exits
(including emergency escape routes), internal and external doors, gates,
toilet and washing facilities, public facilities (such as telephones,
counters or service desks), lighting and ventilation, lifts and
escalators. It is important to realise these features aren't just
buildings or indoor facilities. They could include seating in the street
or a pub garden, stiles and paths in a country park, fixed signs in a shop
or a leisure facility.
How do service providers know what
reasonable adjustments are required
so that their services are accessible?
Service providers should consider whether their services are accessible to
disabled people, and anticipate their needs and the adjustments that may
have to be made for them, rather than waiting until a disabled person
wants to use a service. This can be done by asking customers whether they
have any special requirements and what adjustments may need to be made.
Is the DDA just about making
expensive alterations to buildings?
Don't assume that the only way to make services accessible to disabled
people is to make a physical alteration to their premises (such as
installing a ramp or widening a doorway). Often, minor measures such as
allowing more time to serve a disabled customer will help disabled people
to use a service. However, adjustments in the form of physical alterations
may be the only answer if other measures are not sufficient to overcome
barriers to access. Some changes, such as automatic doors or
lifts, are more expensive but will only be required where reasonable and
will usually benefit all customers and represent an investment in an all
round better customer service.
Health and Safety: What are our
responsibilities for fire safety?
Some service providers label all people with physical impairments as fire
risks and this is obviously highly discriminatory. No longer will the law
allow blanket bans on grounds of health and safety. We will need to make
an assessment of risk that is appropriate to each individual disabled
person and their circumstances in the event of fire in the same way we
would with anybody else. We should have evacuation plans for all customers
including disabled people.
Can a service provider charge
disabled customers extra to recover the
costs of any adjustments that have to be made to a business?
No. Reasonable adjustments are part of a service provider's general
expenses of providing the service, and this cost cannot be passed on to
disabled customers alone. Nor can a service provider charge disabled
customers more than others for the same thing, as a way of deterring
disabled customers. But if a service is tailored to an individual disabled
customer and meeting their requirement involves an additional cost for the
service provider, then the service provider may be able to justify
charging the disabled customer more than others.
What are the implications Businesses
fails to meet the duties?
A person who believes that a service provider has unlawfully discriminated
against him or her may bring civil proceedings to the Sheriff Court in
Scotland. Before reaching the stage of legal proceedings it is likely that
a complaint may come to light through the complaints procedures. Any
discrimination may have been unintentional and the dispute may be resolved
by negotiation. If a dispute cannot be resolved by conciliation or
agreement, and the complainant has brought legal proceedings, the matter
will have to be decided by a court. If successful, a disabled person could
be awarded compensation for any financial loss, including injury to
feelings. The disabled person may also seek an interdict to prevent the
service provider repeating any discriminatory act in the future. The court
may make a declaration as to the rights and responsibilities of the
parties involved. |