Who is a disabled person for the purpose
of the Disability Discrimination Act
Schedules 1 and 2 of the Disability Discrimination
Act deal primarily with the identification of the meaning of
who is disabled and who is not disabled for the purpose of
the Act.
Section 1 of the Disability Discrimination Act defines disability
as follows “A person has a disability for the purpose
of this Act if he has a physical or mental impairment which
has a substantial and long term adverse affect on his ability
to carry out normal day-to-day activities”.
A short definition which is a working definition
can paraphrase this as being it must have a substantial affect
on someone’s day-to-day activities and it must be capable
of lasting longer than one year. The condition itself, in other
words has to be a long term condition which is capable of lasting
longer than a year, which must have a substantial affect on
the ability for the person to perform normal day-to-day activities.
Examples would include physical disabilities
like wheelchair users. Other disabilities like those suffering
with severe back problems, unable to lift more than say 2 kg,
are more subtle disabilities which are less obvious. The Act
then goes on to state
“for the purpose of establishing whether someone has
a disability, the treatment that they are under, should be
disregarded”. That then brings into play people who suffer
from epilepsy, people who are diabetics because the epilepsy
treatment they are under may mask if not totally prevent that
person from suffering from fits. Again, those who are diabetic
have their condition under control through use of insulin.
The treatment clause can bring into play other people that
you would not necessarily think of being disabled for the purpose
of the Act such as those people who are suffering with mild
asthmas, people who suffer from osteoporosis, arthritis, the
list is fairly extensive.
In my view, most employers employ disabled
people without being aware of their disability necessarily.
Your employer is only obliged to provide reasonable adjustments
when they have knowledge that the person has got a disability.
There are a number of cases on what constitutes knowledge but
in a simplified form, it does not mean that there is a direct
knowledge that the person has a disability that has been confirmed
by a doctor. It means no reasonable person would be unaware
of the fact that disability could be an issue. I am tempted
to paraphrase some complex law on this matter but this is appropriate
to go into on a web page of this nature. I would always advise
that if you have a feeling that you may be disabled for the
purposes of the Disability Discrimination Act, then the lawyer
representing you would necessarily have to get a medical report
to confirm whether you meet the criteria or not.
Certain types of condition have been deliberately
excluded from the Act such as tendencies to light fires i.e.
an arsonist, tendency to steal through a psychiatric problem
i.e. a kleptomania or suffer from or be dependent on a non-prescribed
drug such as say heroin, crack cocaine etc. This does not mean
that a condition caused by the dependency could not in itself
amount to a disability for the purpose of the Act.
If over drinking results in a person suffering from
liver problems, provided those problems were long
term had a substantial affect on someone’s
day-to-day activities then the person would still
be disabled for the purpose of the Act.
Another example would
be if someone who suffers from a mental impairment
which was recognised as a proper impairment under the
criteria as a symptom of that mental impairment, the
person was abusive and also stole. That might be a
combination of a condition known as “turrets”.
Now the condition of turrets where someone swears and
has uncontrollable outbursts normally does not include
kleptomania but there is nothing to say that the person
could not have the combination of two and one could
amount to a disability and one would not. |
I have briefly skimmed through the issue
of the definition of disability and there are a number of areas
I have left as being too complex to discuss here. The basic
issues that should be addressed:
- Is the condition long term?
- Is the condition having a substantial
affect on normal activities such as doing household chores,
walking up and down stairs, walking distance, lifting say
small weights such as shopping, children, doing basic gardening
etc.
If the answer to both those questions is
yes, then there is a reasonable likelihood that it could amount
to disability.
The definition also extends to a number of
unusual conditions that in themselves do not have a physical
substantial affect on day-to-day activities. That would include
people who are disfigured. The Act specifically includes people
who are disfigured to protect them from discrimination. People
who have a progressive condition such as say ME, HIV only need
to show the condition is having some effect. It need not be
substantial with progressive conditions.
The Act also includes people who have suffered
from past disabilities who are no longer disabled but are suffering
a detriment because of their past disability that would include
people who suffer say in the past from hepatitis and there
is a pathological concern by the workforce that that person
may still carry the condition.
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