It's a hard Act to follow through
The new Disability Bill will lack the necessary support network, writes Roger Trapp
Wednesday 25 October 1995
The Act is expected to come into force next spring. Although amendments couldbe made up to the date of the Royal Assent, reckoned to be 6 November, these are unlikely to deviate from the core principle that from then on it will be unlawful for organisations employing 20 or more people to discriminate against what are termed "disabled persons" in recruitment, employment, training, benefits and dismissal.
Employers will be able to offer a justification for less favourable treatment - that is, if it operates in an area that it deems unsuitable for the disabled person. But this defence will be subject to a new duty on employers to adjust their arrangements or premises in order to make them suitable.
However, simple as the central thrust of the legislation sounds, observers are not convinced that the months following its introduction will be so straightforward.
First, in a somewhat unusual departure, the Act itself will not carry much detail. "The flesh on the bone" - in the words of one employment lawyer - will come later with a code of practice and regulations.
For the moment, though, there is still widespread concern over the definition of disabled. While the US approach of allowing "past disabilities", such as mental illness, is being included, there is concern that the law will not go far enough. Since last November's introduction of the Bill - which followed several years of attempts to introduce private members' legislation - there have been loud protests about this by various disabled groups. Less predictably, perhaps, large companies - grouped together under the banner of the Employers' Forum on Disability - have suggested that the legislation does not go far enough in encouraging people to take on disabled workers.
Second, much will depend on early interpretations by tribunals of such matters as the employer's entitlement to justify practices. This sounds like a subjective test, but Barry Mordsley, partner with solicitors Harris, Rosenblatt and Kramer and a part-time industrial tribunal chairman, is hoping it will be applied objectively. In other words, would a "reasonable man" believe that a company should be able to exclude a disabled person from a job because of its unsuitability for them?
He and others believe that applying it subjectively would bring the risk of negating the effect of the legislation. "The employer's defence is going to be a major issue," says Mr Mordsley, adding that there will be a lot of interest in how far he and other industrial tribunal chairmen would go in allowing the defence.
Related to this is the extent to which employers would have to make adjustments to their premises and working practices to cater for disabled people. Again, there will be questions about reasonableness, so that a one-man band will not have to make the same changes as a multinational such as ICI. Mr Mordsley suggests that in more borderline cases, tribunals will have to look at balance sheets in order to be able to assess whether particular companies can afford to do what is required.
But these concerns are dwarfed by worries about the inability to enforce what legislation there is. When William Hague, then minister for the disabled, introduced the Bill, he described it as "the most comprehensive package of government measures ever brought forward to tackle discrimination against disabled people".
But the drafters have omitted to set up the same support network as exists for both women and racial minorities - so calling into question the idea that the Bill seeks to put the disabled on to the same basis as these two categories.
As William Dawson, a partner in the employment law department of City solicitors Simmons & Simmons, points out, the absence of the equivalent of the Equal Opportunities Commission (EOC) or the Commission for Racial Equality (CRE) will affect employers as well as individuals. A commission could not only advise disabled people on their rights and encourage them to go to a tribunal if necessary, but could also assist companies with complying with the law, says Mr Dawson, who will be contributing to a seminar on the Bill being run by his firm next Wednesday. "It puts out a signal that [disabled people] won't be treated like women or racial minorities," he adds.
But it is not just that there is no body to enforce the legislation; there is the confusion associated with having two. The existing National Advisory Council on the Employment of People with Disabilities is, under the legislation, to be joined by a National Disability Council. Most observers believe that the juxtaposition will weaken rather than strengthen the position of those that are supposedly being helped.
The advisory council does not have the same remit to help the public as the commissions, and it is understood that people with disabilities will not be able to go directly to the NDC. Moreover, the NDC's proposed budget is only about pounds 250,000 - compared with pounds 6m for the EOC and pounds 15m for the CRE.
All this, plus the fact that legal aid is not available for industrial tribunal cases, would suggest that litigation is going to be limited. However, all agree that since disability is more open to interpretation than race or gender, there is considerable scope for contention. The Government expects 2,000 disputes to go to tribunals in the first year alone and - as Mr Mordsley says - that means there is the potential for large amounts of compensation.
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