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FAQs on Disability Discrimination Act 1995 (DDA)
The guidelines on this site for dealing with health issues relate to both primary and secondary care.
How is disability defined under the DDA?
Can Occupational Health recommend that one of my team is disabled under the DDA?
What is the aim of the DDA?
What type of day to day activities does the impairment need to affect?
Are any conditions excluded from the DDA?
Is there a minimum period of employment before an employee can make a claim under the Act?
How does Occupational Health make an assessment of fitness for work for an employee who is considered disabled under the DDA?
What is the duty of the employer in making reasonable adjustments?
What factors should be considered when determining the reasonableness of a work place adjustment?
What is the role of the Disability Employment Advisor (DEA)?
What is the role of the Trust, if after careful consideration and discussion with HR a decision is made that the recommended adaptations are not reasonably practical?
How is disability defined under the DDA?
The DDA defines disability as a physical or mental impairment, which has a substantial and long-term effect on a person's ability to carry out normal day-to-day activities. The effects of artificial aids or medication should be disregarded when deciding if someone is disabled. The DDA also covers people who have been disabled in the past who have now recovered e.g. mental illness.
Can Occupational Health recommend that one of my team is disabled under the DDA?
Occupational Health can recommend that an employee is defined as disabled under the DDA, but only an industrial tribunal or court can make the final decision. If there is any doubt it is better to err on the side of caution.
What is the aim of the DDA?
The DDA makes it unlawful to discriminate against a disabled person for reasons associated with their disability, where the treatment cannot be justified. In employment discrimination can occur in recruitment and retention, promotion and transfers, training and development, as part of the dismissal process or via access to benefits provided by the employer.
What type of day to day activities does the impairment need to affect?
For an impairment to affect day to day activities, it must affect one or more of the following categories:
- Mobility
- Manual dexterity
- Physical coordination
- Continence
- Ability to lift, carry or move everyday objects
- Speech, hearing or eyesight
- Memory, ability to concentrate, learn, understand
- Perception of physical danger
Are any conditions excluded from the DDA?
Yes the following are excluded:
- Addiction to drugs, alcohol and nicotine
- Tendency to set fires or steal
- Tendency to physical/sexual abuse of others
- Exhibitionism, voyeurism
- Seasonal allergic rhinitis (hay fever)
Is there a minimum period of employment before an employee can make a claim under the Act?
There is no minimum period worked before a claim can be made, i.e. discrimination can occur at the pre employment stage before work has even started. There is no upper limit on the amount of possible compensation awarded to the employee for discrimination.
How does Occupational Health make an assessment of fitness for work for an employee who is considered disabled under the DDA?
This is done in two stages: firstly a functional assessment is performed to ascertain whether the employee can carry out the essential tasks of the job. This may involve looking at and considering the job description, previous and current work capabilities, recreational activity, and psychological, cognitive or behavioural functional assessment. It may be necessary to perform a hands on assessment with the employee in the workplace.
The second stage involves risk assessment. It is important to consider any risk present to the employee whilst doing the job, or to other people, property or to the wider interests of the employer. It is then necessary to decide whether this level of risk is acceptable.
What is the duty of the employer in making reasonable adjustments?
The DDA places a duty on employers to consider and where reasonable make adjustments to the working environment in order to facilitate a disabled individual in recruitment or retention at work. The Occupational Health Department will give advice regarding possible work place adjustments.
Examples of reasonable adjustments may include:
- making adjustments to premises
- allocating some of the disabled persons duties to others
- transferring the person to fill another vacancy
- altering the working hours, or workplace
- allowing absences for rehabilitation, assessment or treatment
- arranging training
- acquiring or modifying equipment and/ or manuals
- providing a reader/interpreter or supervision.
What factors should be considered when determining the reasonableness of a work place adjustment?
The following should be taken into consideration:
- the effectiveness of the step in preventing the disadvantage
- the practicality of the step
- the financial cost
- the disruption caused
- the extent of the employer's resources
- the availability of financial or other assistance
- the effect on other employees
- the co-operation of the disabled employee.
A decision on whether adjustments are reasonable and a plan to implement them is the responsibility of the employer not the Occupational Health Department. It is important that good records are kept of the possible adjustments and reasons why they can or cannot be accommodated.
What is the role of the Disability Employment Advisor (DEA)?
Occupational Health may sometimes recommend involvement of the DEA. The DEA works for the Department of Work and Pensions and may be a useful resource to help with assessment and funding of accommodations in the workplace for the disabled employee.
What is the role of the Trust, if after careful consideration and discussion with HR a decision is made that the recommended adaptations are not reasonably practical?
The Trust has a duty to consider if there are any other more suitable jobs that could be offered to the disabled employee either at pre-employment or as a redeployment option.
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