THE EMPLOYMENT PROVISIONS OF THE DISABILITY DISCRIMINATION ACT (DDA)

What the provisions cover

The employment provisions of the DDA make it unlawful for employers to discriminate against disabled people for reasons connected with their disability in:

· recruitment and terms and conditions of employment;

· promotion, transfers, training and other benefits; and

· dismissal and any other restriction (e.g. demotion)

Not everyone who is disabled is covered by these provisions. If you are severely or profoundly deaf, you will certainly be regarded as "disabled"; but if you work in a small firm where there are less than 15 employees, you are not covered, nor if you work in the armed forces, police services, the fire brigade or prison service, or on board a ship or aircraft.

Subject to these exceptions, however, the legislation is likely to be particularly relevant if you want to keep your job with your present employer or fill a vacancy for another job with the same employer. For the DDA makes it unlawful for your employer to dismiss you for a reason connected with your deafness unless he has what is judged to be "substantial" justification for doing so. In addition, he must be prepared to make reasonable adjustments to enable you to continue working for him.

The need for employers to make reasonable adjustments

The Act contains a list of examples of the kinds of adjustments that should be considered. These include several adjustments that might help to maintain the employment of a deafened employee such as:

· allowing the employee to be absent during working hours for rehabilitation, assessment or treatment (e.g. to attend lipreading classes or take part in a rehabilitation course at the LINK Centre)

· allocating some of the employee's duties to another person(e.g. answering the telephone, attending meetings);

· acquiring or modifying equipment(e.g. the provision of technical aids such as textphones or radio microphones);

· providing an interpreter (e.g. a lipspeaker); and

· transferring the employee to another job for which there is a vacancy.

However, the employer only has to make adjustments which are "reasonable". This means adjustments that are practicable and likely to be effective and that the employer can afford, taking account of his own financial and other resources and other assistance available to him (such as Access to Work).

The evidence of the case studies suggests that many adjustments to assist deafened employees' communication are likely to be effective, but not all. For example, despite the support which Ronnie received to help him follow discussion at Board meetings, he could not understand enough to play the active role required of him as a senior manager.

The same requirement to make reasonable adjustments applies to employers involved in recruitment. They must be prepared to modify their selection process (e.g. by allowing a deafened employee the support of a lipspeaker or notetaker at the selection interview), and if overall the disabled applicant is the best candidate for the job, they must make reasonable adjustments to enable him or her to do the job (e.g. by arranging for another member of staff to answer the telephone).

What happens if the employer breaks the law?

A disabled person who feels that they have been discriminated against in employment can complain to an industrial tribunal. Initially there will usually be an attempt to reach a settlement by agreement with the employer; but if that cannot be achieved, the case will go before the tribunal and often will be argued by legal representatives of both sides. (Please note that legal aid is not available for industrial tribunal cases; so you may need to look for organisations prepared to offer free legal representation. For help in finding such organisations see Organisations for Advice on the Disability Discrimination Act).

If the tribunal finds in favour of the disabled person, it can order the employer to pay compensation (some large sums have been awarded) and recommend what action the employer should take to undo the damage caused by the discrimination; but it cannot order the employer to take the disabled person back after dismissal nor to offer a job for which he or she previously has been rejected. However, the tribunal does have the power to increase the amount of compensation that the employer must pay if he or she has ignored its recommendations.

How can the DDA help me?

In most cases making a complaint of discrimination to an industrial tribunal will not get you your job back after you have been dismissed or get you a new job for which you have already been rejected. The main value of the DDA, therefore, is as an influence on your employer while you are still negotiating to keep your job or for a new job to be adapted to enable you to do it.

Provided that your employer knows about the employment provisions of the DDA and the risk of having to pay compensation if he does not comply with them, this knowledge may goad him into considering seriously how to help you stay in your job. It may also stimulate a new employer to consider what adjustments he can make to help you fit into a job for which, apart from your deafness, you are clearly the best candidate.

But it does depend on whether the employer knows what the DDA requires. So if you are facing compulsory medical retirement because your employer has rejected your proposals for additional support to help you stay in your current job or move to a new job, make sure that he knows about the employment provisions of the DDA. If he realises that he could face a hefty award of compensation for contravening the DDA, particularly if you are a long-serving employee, he may be persuaded to examine your proposals more sympathetically.

The DDA is unlikely to have as strong an impact on a prospective employer who has rejected your proposals for reasonable adjustments to a new job unless you can prove that, apart from your deafness, you are the best candidate for the job. That is why I have recommended that you should apply for vacancies with employers who have already made a public commitment to providing equal opportunities in employment for disabled people.