Michelle Batty. April, 2003.Cystic Fibrosis and the Disability Discrimination Act 1995 [online]. Michelle Batty is a
Trainee Solicitor at Richmonds Solicitors, UK. Available from http://www.cysticfibrosismedicine.com

In recent years there have been a number of changes to the law in relation to employee rights. Substantial changes have been made in particular, to the law in relation to disabled workers. Because of this many employees are unaware of their rights and do not know what they can reasonably expect from their employers. If you have Cystic Fibrosis and you are in a position of employment it is important that you are aware of the Disability Discrimination Act 1995 and how it affects you.

The Disability Discrimination Act 1995 ('the Act') applies to people who have a disability (1). The Act provides protection in the work place in that it requires the employer to make reasonable adjustments to allow the employee to carry on working. The Act also protects the employee from discrimination on grounds of their disability. Under this law a disabled person has the right not to receive discriminatory treatment during their employment and also during the recruitment process for new employment. The Act presently applies to all employers who employ 5 or more employees (2).

However the Disability Discrimination Act only protects those who fall within its definition of a disabled person. To understand this it is important to realise that although a person is considered disabled in other areas of law, for example, if they are in receipt of Disability Living Allowance or Invalid Care Allowance, they do not automatically fall within the definition of a disabled person for the purposes of the Disability Discrimination Act. The Act (3) applies to individuals on a case-by-case basis depending on how and to what degree they are affected by their condition. Accordingly the Act does not automatically apply to everyone with Cystic Fibrosis, ('CF'). Cystic Fibrosis affects people differently therefore each individual is assessed in relation to their own circumstances.

There has been to date no case to test whether Cystic Fibrosis 'qualifies' as a disability for the purposes of the Disability Discrimination Act 1995. The Act defines a disability in the following way:

"A physical or mental impairment which has a substantial and long term effect on ability to carry out normal day to day activities"

Therefore, in legal terms CF is a 'physical impairment' that has substantial adverse effects to the individual. Those effects are long term and do greatly effect a person's ability to carry out 'normal day-to-day activities' (4). There is no question that CF is an impairment. A recent case (5) defined a physical impairment as

"Some damage, defect, disorder or disease"

The 'Disability Discrimination, Employment Law Handbook', published by the IDS (6) states that a potential physical impairment will include problems in connection with the back, stomach, liver, kidneys, the digestive system or with diabetes, all of which are symptoms associated with CF.

Therefore, in reality there is no dispute as to whether CF is a physical impairment with a substantial and long-term effect. However to come under the ambit of the Act you must be able to show that CF has an adverse impact on your ability to carry out normal day to day activities. It is on this point that the law pays particular attention. In broad terms 'normal day to day activities' include all activities and duties that you would expect to do on a daily basis at work and at home. However the Government has published a set of very detailed guidelines to show the factors that are considered when assessing whether a person is disabled for the purposes of the Disability Discrimination Act (7). Under the Guidance, CF is deemed to effect your normal day to day activities if it effects one of the following:

•Mobility
•Manual dexterity
•Physical co-ordination
•Continence
•Ability to lift, carry or otherwise move everyday objects
•Speech hearing or eyesight
•Memory or ability to concentrate, learn or understand: or
•Perception of the risk of physical danger.

CF does not affect all of the above, however the following are directly affected, albeit in different degrees depending on the individual in question.

Mobility

Paragraph C14 of the Guidance details the requirements in relation to mobility. If as a result of CF you are restricted to the time in which you can stand, walk or leave home without assistance you will be considered to have a disability under the Disability Discrimination Act. People with CF often experience great difficulty in walking a short distance or climbing stairs due to shortness of breath, chest pain or fatigue. The Guidance also makes reference to the inability to use one or more forms of public transport. If you are unable to travel by aeroplane or are required to take oxygen on the plane this will be also taken into consideration.

When assessing this you should consider the extent of your ability in the absence of medication and treatment. To people with CF this will make a substantial difference. The term medication includes Creon, insulin, antibiotics, dietary supplements. The absence of any of the above would cause rapid deterioration of all symptoms of Cystic Fibrosis. Mobility would be directly effected.

Inability to lift, carry or otherwise move everyday objects

The Guidance advises that you are considered to suffer a substantial adverse effect to your normal day-to-day activities if you are unable to bear weights, for example an overnight bags, bags of shopping over a reasonable period of time. Other examples provided by the Guidance include the inability to pick up objects of moderate weight with one hand or to carry a moderately loaded tray steadily.

Again this will be assessed in the absence of medication and treatment. Consideration will be given to weakness due to fatigue, breathlessness, muscle deterioration, etc.

Indirect effect of Cystic Fibrosis

The indirect effects of CF will also be taken into account. Tiredness caused by frequent coughing through the night together with timed medication and treatment disrupting the pattern of sleep can in turn effect mobility in relation to the distance that a person can walk or drive. It can also effect co-ordination and the ability to concentrate, therefore effecting manual dexterity (8).

The provisions of the Guidance also take into account any pain suffered in carrying out normal day to day activities. For example you may have the capacity to lift objects or walk upstairs but experience severe stomach pain in doing so. The pain you experience limits your ability to carry out your day to day activities.

Medication and Treatment

The positive effects or relief gained by medication or treatment such as physiotherapy should be disregarded when assessing the adverse effect of CF (9).

Past disability

When the Disability Discrimination Act came into force in 1996 it dispensed with the requirement to register oneself on the register of disabled persons (10).However if you were previously registered on both 12th January 1995 and on the 2nd December 1996 you are automatically classed as having a past disability. If you can prove that the effects of the past disability are long term and lasted for 12 months, you are automatically deemed disabled for the purpose of the Disability Discrimination Act 1995. In simple terms you do not have to fulfil the lengthy requirements discussed above. The certificate of registration will provide sufficient proof of your entry.

Protection under the Act

Once you have established whether you are 'disabled' for the purposes of the Act then you have the following rights:

• Not to be discriminated against because of your disability.
•To request the employer to make reasonable adjustments to accommodate your disability.

Discrimination

It is unlawful for an employer to discriminate against either an employee or a job applicant on the grounds that they have a disability (11).

During Employment

An employer must not offer different or make amendments to your terms of employment because you have a disability. The terms of your employment include the details in your contract of employment such as pay, hours of work, holiday entitlement, holiday pay, sick pay and other benefits. The term 'other benefits' is wide ranging and covers anything that you are not receiving that, in comparison other non disabled employees are receiving.

It is unlawful for the employer to deny an employee the opportunity of promotion or transfer, the availability of training or eligibility for occupational pension or insurance schemes. If you are treated in this way your employer has breached your rights under the Disability Discrimination Act 1995. Finally if you are dismissed, selected for redundancy or refused the renewal of a fixed term contract, you have been subject to discriminatory treatment on grounds of your disability and are therefore entitled to make a claim at the Employment Tribunal.

Harassment

Employers are also responsible for the discriminatory actions of their employees. Therefore if you are being harassed or subject to differential treatment, for example insults or taunting because of your disability, your employer has a duty to take action to investigate and stop it. If they do not they will be deemed to have breached your rights and breach of your contract of employment

During Recruitment.

Employers must not treat you less favourably during the recruitment process. For example, It is unlawful for an employer to produce a job description or advertise for a vacant position in a manner that would discourage a disabled person from applying. It is also unlawful for an employer to refuse to employ a person because of their disability, or to offer employment to an applicant on different terms because of their disability (12).

Employers also have a positive duty to make reasonable adjustments to allow a disabled applicant to take part in the recruitment process. For example if you are requested to attend an interview to take place on the top floor of a building and you are unable to walk up the stairs, the employers have a duty to relocate the interview to a more accessible location.

Reasonable Adjustments

When the working arrangements or the physical features of the place of work put you at a substantial disadvantage, (Substantial means more than minor) in comparison to other employees (people who do not have CF), your employer has a duty to make reasonable adjustments. This duty only arises when the employer is aware of your disability. If you have not informed your employer that you have Cystic Fibrosis he is not reasonably expected to have known and can therefore justify not making the adjustments. If the employer is not familiar with Cystic Fibrosis it will not be obvious to them as in many cases there are no overtly recognisable signs. However it is likely that you take medication at work or have requested time off to attend hospital appointments. In most cases these actions will give your employer reasonable grounds to believe that you have a disability. If your employer suspects in any way that you may have a disability, they are then under an obligation to investigate the matter. If they fail to do so they cannot refuse to make reasonable adjustments on the grounds that they were not informed of your disability.

•If the employer fails to comply with requests for reasonable adjustments without proper justification, you are entitled to bring actions against them under section 5 (2) Disability Discrimination Act 1995 on the grounds of discrimination.

•If you ask your employer to make an adjustment they will be entitled to ask you for evidence that your 'impairment' (CF) qualifies as a disability under the Disability Discrimination Act 1995.

What are Reasonable Adjustments?
As a disabled employee you are entitled to ask for reasonable adjustments to be made to both the physical feature and lay out of the place of work, and the working arrangements. Section 6 of the Disability Discrimination Act gives the following examples of reasonable adjustments the employer may make.

Adjustments to premises
This could include structural changes such as widening a doorway, providing a ramp or moving furniture for a wheel chair user.

Allocating some of your duties to other employees
For example if some of your duties involve lifting equipment that you cannot do all the time or are on temporary treatment, these duties could be transferred to other employees.

Transferring you from your old position to fill a new vacancy
If your condition deteriorates so that you cannot carry on working in your position of employment, there may not be any adjustments that will allow you to continue. In this situation you should be considered for any suitable alternative posts that are available. However the employer does not have to 'create' a position for a disabled employee where no vacant position exists.

Altering your hours of work
You are entitled to request to work flexible hours, which will allow addition breaks to overcome fatigue. Time should also be given to ensure all treatment is administered on time, this could involve starting work later or leaving early. If time is needed throughout the day you are entitled to leave the premises to undergo treatment.

Working in a different place of work
If one building is more accessible than another is you are entitled to request a transfer to the most accessible building. Further if the environment in one area of work is detrimental to your health you can request to work in another area. For example you are entitled to request a transfer from a smoking area to a non-smoking area.

Authorised absence from work for rehabilitation, assessment or treatment, including physiotherapy.
You are entitled to attend all hospital and doctors appointments.

Training
If you are transferred you should receive the appropriate training for your new duties. This could also relate to training in relation to specialist equipment brought in for disabled employees.

Acquiring or modifying equipment
For example providing a specially adapted keyboard if you also suffer from swollen joints or related arthritis.

Modifying procedures for testing or assessment
If longer time is needed in assessments your needs should be accommodated. The location of any assessments should be fully accessible. If assessment is on going during your employment the employer should consider any request for extension of time limits.

Providing supervision
In appropriate circumstances this could involve allocating a support worker to work with you to improve confidence. This may also involve training other persons in relation to disability issues or in the use of equipment and providing external support or access to external support.

Victimisation

If you choose to exercise your rights under the Disability Discrimination Act you are protected against any disadvantage you may incur. This means that if you are treated less favourably or placed at a disadvantage because you have made a request for reasonable adjustments or have given evidence or information in connection to a complaint made by yourself or a colleague, you have been victimised by your employer. You are therefore entitled to make a claim to the Employment Tribunal to that effect. The Tribunal can grant an order asserting your rights and declaring that they have been breached. The Tribunal also has the authority to compel your employer to take certain action to reduce the chance of further breach and in most cases will order them to pay you a sum of compensation.

Steps to take

If after reading this article you feel that your employer has breached your rights you are entitled to lodge a complaint under the terms of your employers grievance procedure. If your employers fail to take any positive steps to resolve the problem or if your employment already has come to an end, you can make an application to the Employment Tribunal. You can do this by filling in an IT1 form and sending it to the Employment Tribunal. IT1 forms are available at your local citizen's advice bureau or you can make an application on line at the Employment Tribunals web site. The address (at the time the article was written) is as follows:

http://www.employmenttribunals.gov.uk/england/forms/IT1.asp

Alternatively you can instruct a solicitor to make an application on your behalf. The completed form will provide the basis of your claim and unless your employer offers to settle the matter outside of the Tribunal you will be required to attend a hearing of your claim. It is therefore advisable to at least consult with a solicitor before entering your claim to assess the strengths of your case and to ensure that they are addressed in your application.

Primary source and notes

1) S.1 (2) Disability Discrimination Act 1995

2) The Government have indicated plans to extend the scope of the Act in line with European requirements. However this is not likely to take effect for at least 12 to 14 months.

3) ibid

4) S.1 (1) Disability Discrimination Act 1995.

5) Rugamer v Sony Music Entertainment UK Ltd, McNicol v Balfour Beatty Rail Maintainance Ltd [2001] IRLR 644 EAT

6) Chapter 2 pp35 "Disability Discrimination - Employment Law Handbook", IDS (3rd edition) April 2002

7) Guidance on matters to be taken into account in determining questions to the definition of disability (the Guidance)

8) Authority provided in the case of Leonard v Southern Derbyshire Chamber of Commerce 2001 IRLR 19

9) Paragraph B6 of the Guidance states that if the treatment simply delays or prevents reoccurrence of the effects of the impairment and a reoccurrence would be likely if the treatment were stopped, then the treatment is to be ignored.

10) The register of disabled persons maintained under s6 of the Disabled Persons (Employment) Act 1944

11) Section 4 Part II Disability Discrimination Act 1995.

12) Section 4 Disability Discrimination Act 1995

Disability Discrimination Act 1995

Disabled Persons (Employment) Act 1944

Guidance on matters to be taken into account in determining questions relating to the definition of disability. HMSO Publications Centre

Chapter 2 pp35 "Disability Discrimination - Employment Law Handbook", IDS (3rd edition) April 2002

Leonard v Southern Derbyshire Chamber of Commerce 2001 IRLR 19.

A copy of the Disability Discrimination Act can be found on Lawtel, www.lawtel.co.uk

A copy of the Guidance can be ordered by telephone or fax from HMSO Publications Centre on the numbers below:

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