Impairment of long-term effect
Schedule 1 applies and states that impairment is of long-
term effect if it has lasted for 12 months, or is likely so to
last, or is likely to last for life. A severe disfigurement
is included. The effect on normal day-to-day activities
is dealt with by a list in para 4 of Sch 1 which includes
mobility, manual dexterity, physical co-ordination and
lack of ability to lift or speak, see, hear, remember, con-
centrate, learn or understand or to perceive the risk
of physical danger. Also included are those who have
a progressive condition such as HIV from the time of
diagnosis. Persons who were on the register of disabled
persons kept under s 6 of the Disabled Persons (Employ-
ment) Act 1944 when the relevant provisions came into
force are deemed disabled.
The Act also covers in s 2 ‘a person who has had a
disability’, even though he or she may no longer be dis-
abled. This applies in regard to employment, services
and discrimination in regard to premises and follows a
government pledge that those with a history of disability
should be covered.
Employees who are within the definition
Under s 4 it is unlawful for an employer to discriminate
against a disabled employee:
■in the terms of employment and the opportunities
for promotion, transfer, training or other benefits or
by refusing the same;
■by dismissal or any other disadvantage.
Section 17 makes clear that trustees and managers of
occupational pension schemes are under a general duty
not to discriminate against the disabled. This rule will be
implied into the rules of occupational pension schemes.
However, it is envisaged that pension benefits of dis-
abled people might justifiably be less than those who are
not disabled.
An important case that questions the existing scope
of disability discrimination is Colemanv Attridge Law
(2008). Sharon Coleman, the primary carer for her dis-
abled son, claimed that she had been treated less favour-
ably than other employees with children as a result of
her association with a disabled person. In particular,
she alleged that the employer refused to allow her the
same flexible working arrangements that were granted
to employers with non-disabled children. She instituted
a claim for constructive dismissal. Coleman sought to rely
on the Disability Discrimination Act and EC Directive
2000/78. The Directive established a general framework
for equality of treatment in situations of employment
and occupation. The complainant argued that the Direct-
ive extended protection from discrimination to indi-
viduals who are not themselves disabled but are the
victims of discrimination by association. Accordingly,
the Disability Discrimination Act should be interpreted
in conformity with the Directive.
The employment tribunal referred the question of the
proper construction of the Directive to the European
Court of Justice. The question was addressed by an
Opinion by the Advocate-General in January 2008. The
Opinion stated that:
It is not necessary for someone who is the object of dis-
crimination to have been mistreated on account of ‘her
disability’. It is enough if she was mistreated on account
of ‘disability’. Thus, one can be a victim of unlawful
discrimination on the ground of disability under the
Directive without being disabled oneself...Therefore,
if Ms Coleman can prove that she was treated less
favourably because of her son’s disability she should be
able to rely on the Directive.
This is a potentially ground-breaking interpretation
of the Directive, which would require the Disability
Discrimination Act to be revised in order to reflect this
interpretation. It should be noted that the Advocate-
General’s Opinion is not binding. Nevertheless, it may
influence the ECJ’s decision, when it considers the case.
If the Court endorses this interpretation it will have pro-
found consequences for the scope of disability discrim-
ination in the UK.
As regards insurance benefits, where an employer
makes arrangements for employees with an insurance
company for matters such as private health insurance,
the insurance company will under s 18 act unlawfully if
it treats a disabled person in a way which would be an
act of discrimination if done by the insurance company
to a member of the public generally. This covers refusal
to insure and the levying of higher premiums unless
justified, as it may be if there are reasonable grounds for
supposing that the disabled person represents a higher
than normal risk.Employer’s defence
Section 5, which deals with the meaning of discrimina-
tion, allows employer discrimination if, but only if, the
reason is both material to the circumstances of the case
and substantial. Thus, less favourable treatment may be
justified if the employer believes on reasonable groundsPart 4Business resources