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Am I Disabled?

A survey showed that 52% of people who qualified as "disabled" under the DDA did not consider themselves disabled. Most people who have a disability or a health condition develop it in later life - only 17% are born with a particular condition.

People are affected by disability or health conditions in different ways. This can happen suddenly, as a result of accidents or strokes for example, or gradually as a result of conditions such as arthritis and multiple sclerosis. Some people are affected for some but not all of the time by their condition, for example people with manic depression. There is often no defining moment when a health issue becomes a disability.

Definition of "Disabled"

In order to prove you are “disabled” for the purposes of the Disability Discrimination Act, you will have to show the following:

• that you have a physical or mental impairment;
• the impairment must have a substantial effect which is long term and;
• the long term substantial effect must have an adverse effect on normal day to day activities.

In other words, if you are suffering from a physical or mental impairment which has lasted for 12 months or more, or is likely to last for 12 months or more, which is serious and affects your life in more than a minor way, you will have a disability for the purposes of the Act.

In order for a medical condition to qualify under the protection of the Act, it must be shown that it affects the person’s ability to carry out normal daily activities in any of the following areas:

In the case of depression it may affect a person’s ability to concentrate and it may also affect a person’s ability to maintain performance of the task over a certain period of time.

Many progressive conditions (those which are likely to change and develop over time) for example: cancer, multiple sclerosis, muscular dystrophy and HIV are regarded as an impairment under the Act. The Act will apply as soon as the condition has some effect on the person’s ability to carry out normal day to day activities. Periods of remission are counted as part of the length of the illness if the effects of the condition are likely to recur.

How taking medication affects your rights

If you take my medication and as a result have few symptoms, if any, in order to assess whether your impairment has a substantial effect, you take the condition as if you were not taking your medication or treatment, e.g. if you are a diabetic, you would assess your condition as if you were not taking your medication and if you are deaf, you would assess the severity of your condition without the use of a hearing aid.

Situations that are not covered

Certain things are not covered, for example, glasses wearers are not deemed to be disabled, hay fever is not covered under the Act. Also, addiction to alcohol or drugs are not covered, unless the drugs are prescribed by a GP, for example, Valium or Prozac.

If you can be cured by a one-off procedure or a course of medication you will not be counted as having a disability under the Act. However, if the medication only controls the symptoms, the medication can be disregarded under the Act.

Notify your employer

Many people are concerned about disclosing their medical conditions both when applying for jobs and during employment. If you had a medical condition on joining, you should have disclosed it. However, failure to disclose a medical condition is not of itself grounds for dismissal.

As soon as you become aware that you are suffering from a medical condition, it is in your interest to disclose it to your employer. An employer will only be held responsible for discrimination on the grounds of a disability if they actually know, or ought reasonably to know that you are suffering from that disability. It is important that all medical conditions are disclosed to the employer so that any special needs are taken into account.

Protection offered by the DDA

If you are disabled under the terms of the DDA, then this will help you to negotiate for reasonable adjustments in the workplace and give you legal protection if you feel you have been treated unfairly by an employer. If you are disabled, or have had a disability, the DDA makes it unlawful for you to be discriminated against in:

• employment,
• access to goods, facilities and services,
• the management, buying or renting of land or property,
• education.

If you are deemed to have a disability under the Act, it will then be unlawful for your employer (or prospective employer) to discriminate against you on the grounds of your disability, in any of the following ways:

• by not offering you a job,
• by offering you a job on less favourable terms than a non-disabled employee,
• by not offering you opportunities for promotion, transfer, training or receiving any other benefits available to a non-disabled employee,
• by being denied any other opportunity, or
• by being dismissed, or subjected to any other detriment, for example: harassment or victimisation on grounds of your disability.

The Act outlaws the following forms of discrimination:

• Direct discrimination: If on the grounds of your disability, your employer treats you less favourably than they treat or would treat an employee who did not have your disability and whose circumstances, including their skills and experience were not materially different to your skills and experience.
• Disability related discrimination: This occurs when for a reason which relates to the disabled person’s disability, the employer treats him less favourably than he treats or would treat others to whom that reason does not or would not apply and the employer cannot show that the treatment is justified.
  At present, you need to compare yourself to someone who is in the same circumstances as you, but is not disabled/has a different disability and for example, has had six months off on sick leave. If they would have been treated in the same way as you, then there is no disability-related discrimination. Essentially, it is the same now as direct discrimination.
  The draft Equality Bill was issued by the Government in April 2009 and if passed is set to change the position with regard to claiming disability-related discrimination. It is not possible for us to confirm when that will be at the moment.
• Failure to make reasonable adjustments: If your employer fails to make a reasonable adjustment to any policy, criterion or practice which places you at a substantial disadvantage in comparison to a non-disabled person, that will amount to discrimination. The types of reasonable adjustment that your employer may be under a duty to make include:
  • making adjustments to the physical premises
  • allocating some of your duties to another
  • transferring you to an existing vacancy in another department
  • altering your working hours
  • moving you to a different place of work
  • allowing you to be absent during working hours for rehabilitation, assessment or treatment
  • giving you training to do another job
  • acquiring and modifying equipment
  • modifying instruction/reference manuals
  • modifying procedure, suggestion or assessment
  • providing a reader interpreter and
  • providing supervision
  In determining whether an adjustment is “reasonable” or not, the matters to be considered will include:
  • the extent to which making the adjustment would prevent the adverse effect complained of
  • the extent to which it is practicable for the employer to make the adjustment
  • the financial/other costs which would be incurred in making the adjustment and the extent to which it would disrupt any of the employer’s other activities
  • the extent of the employer’s financial and other resources
  • the nature of the employer’s activities and the size of the business.
• Harassment: This occurs where, for a reason related to the disabled person’s disability, the employer engages in unwanted conduct which has the purpose or effect of:
  • violating the disabled person’s dignity;
  • creating an intimidating, hostile, degrading, humiliating or offensive environment for him/her.
• Victimisation: A person is victimised and will be able to make a claim if they are treated less favourably by their employer and the reason for the less favourable treatment is that the employee:
  • brought proceedings against the employer;
  • gave evidence/information in connection with proceedings brought by someone else;
  • alleged that the employer had breached the Act;
  • and includes where the employer suspects or believes that a person has done any of the forgoing things.

What to do if you think you have been discriminated against

If you feel you have a claim under the Disability Discrimination Act, you must not hesitate to contact your branch representative or contact CWU Headquarters on (020) 8971 7200.

If you feel you are suffering discrimination, you must lodge proceedings in the Employment Tribunal within three months of the act complained of. For example, if you have suffered harassment or a detriment in the work place on the grounds of your disability, the date begins to run from the time you suffer the harassment. Even if you bring a grievance or attempt to deal with the matter internally, the time will still be running against you for the purposes of lodging an application in the tribunal.

Before you make a claim find out more from your employer about their treatment of you and the reasons behind it. The DL56 questionnaire is a procedure under the Disability Discrimination Act (DDA) which you can use to gather evidence about the way you have been treated. CWU advice is always try to use the questionnaire before making a claim to a tribunal.