Disability Discrimination Act 1995

1
Disability Discrimination Act 1995

• Advising on the DDA and adjustments
• Dr Tony Williams
• Consultant Occupational Physician

2
Are tribunals given appropriate and sufficient
evidence for disability claims?
3
'A person has a disability if he has a physical
or mental impairment which has a substantial and
long-term adverse effect on his ability to carry
out normal daily activities'

• Disability Discrimination Act 1995 s1

4
Treatment

• But for treatment, would they have a substantial
  and long-term impairment?
• Are we just looking at the placebo effect?

5
Disability

• Not a medical diagnosis
• A social construct, society decides what
  disability is and who is disabled
• A legal definition for the ET

6
Does the DDA apply to conditions?

• Yes, HIV, MS and Cancer
• Otherwise no, it applies to people not
  conditions.
• Some conditions are excluded (hay fever,
  alcoholism, tendency to set fires, voyeurism etc.)

7
Where a provision, criterion or practice or any
physical feature of premises places the
disabled person concerned at a substantial
disadvantage it is the duty of the employer to
take such steps as it is reasonable in order to
prevent the provision, criterion or practice, or
feature, having that effect

• Disability Discrimination Act 1995 s 4a

8
Review of judgements

• Why do some tribunal decisions appear to be
  illogical or incorrect?
• They decide on the basis of evidence presented
  is this evidence appropriate and sufficient?
• Selected all tribunal cases between Jan 2005
  Jun 2006 (when material was collected)

9
Review of judgements

• Only written judgement available to public
• Not produced in all cases

10
Employment Tribunal Public Register

• Judgements for England and Wales kept at Bury St
  Edmunds
• Not available online
• Database of all judgements

11
Drawbacks 1

• Database entries do not conform to any standard
• dismissed
• struck out
• no reasonable hope of success
• not well founded
• out of time

12
Drawbacks 2

• Unreliable entries
• All judgement outcome entries from Bury St
  Edmunds tribunal are recorded as
• .

13
Actual decision unclear

• Pre-trial hearing succeeds
• because claimant is found to be disabled.
• Full hearing is dismissed
• because there is no discrimination.

14
Cases progressing to hearing
15
(No Transcript)
16
Advice on adjustments

• Advice on adjustments noted in the judgement in
  21/65 cases.
• 2 from Access to Work
• 1 from the employers trade body
• 12 from an occupational physician
• further 2 from a consultant occupational
  physician
• 3 from a GP
• 1 from a consultant psychiatrist.

17
Advice on adjustments

• 30 doctors without occupational medicine
  training,
• 19 cases where claimant was disabled and advice
  from a doctor without occupational medicine
  qualifications
• 4 provided advice on adjustments.
• 17 cases where claimant was disabled and advice
  from an occupational physician
• 12 provided advice on adjustments

18
OP input

• 18 full hearings with OP input
• Discrimination in 6 cases, 4 where advice was
  ignored
• 4 cases with COP input, no discrimination in 3
  cases, advice ignored in 4th
• 14 full hearings with non-OP input
• Discrimination in 3 cases
• 18 full hearings with no medical input
• Discrimination in 6 cases

19
Failure to make adjustments

• respondent failed to make reasonable adjustments
  in 12 cases.
• 4 had no medical input at all
• 1 had input from a doctor without occ med
  qualifications
• 2 had advice from Access to Work
• 5 had input from occupational physicians, none of
  whom appeared to be an accredited specialist

20
Failure to make adjustments

• Advice ignored in six cases
• both cases where Access to Work was involved
• 4 of 5 cases where occupational physicians
  provided advice

21
Lack of advice on adjustments

• 12 cases disability already accepted, no medical
  evidence on adjustments
• 3 cases of discrimination
• 9 no discrimination
• 5 cases disability found, no medical evidence on
  adjustments
• 3 cases of discrimination
• 2 no discrimination

22
Summary so far

• Occupational physicians more likely to provide
  advice on adjustments
• Where OP has been involved, less likely to find
  discrimination provided OP advice followed

23
Evidence for disability

• Unclear in many cases, but judgement is summary
  so may not include evidence presented to tribunal
• Disability often accepted with no clear evidence
  to support it

24
Criticism of opinions

• Vicary v British Telecommunications plc 1999
  IRLR 680 EAT
• Abadeh v British Telecommunications plc 2001
  ICR156 IRLR 23

25
Criticism of opinions

• Six cases where tribunal commented on an opinion
  about whether impairment is substantial
• One praised
• Two chairman simply agreed
• Two chairman disagreed
• One chairman just pointed out that it was for the
  tribunal to decide

26
Criticism of opinion

• Doctors should not tell tribunal but are entitled
  to opinion
• Tribunal accepted opinions when supported by
  evidence
• Tribunal praised opinions where it was stated it
  is for the tribunal to decide
• Tribunal criticised where there was no supportive
  evidence

27
The need for a medical opinion

• the existence or not of a mental impairment is
  very much a matter for qualified and informed
  medical opinion
• Lindsay J in Morgan v Staffordshire University
  2001 UKEAT 0322 00 1112, IRLR 190

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Lack of medical evidence

• Tribunal felt that the claimant had a mental
  health condition not covered by the evidence
  provided
• 'the tribunal has no medical qualificationsWe
  have no evidence on the matter and we are not
  equipped to make a judgement on those points'
• Bradshaw v Philip Milton Company PLC 2005
  1700265 ET

29
Lack of medical evidence

• In another case the tribunal were unable to
  determine the effect of medication as no medical
  evidence was provided, and they found the
  claimant was not disabled.
• Hughes v Dr I Gibson Partners 2005 3201159ET

30
What do employers want?

• Meet requirements of DDA, identify those who need
  adjustments
• What adjustments could and should be provided
• Differentiate between employers wants and needs
• Enable fair dismissal

31
What do employees want?

• To work or to avoid work?
• Adjustments to help them work
• Adjustments to avoid work
• An excuse to avoid disciplinary action
• Sometimes it is clear, sometimes it is a mixture

32
Carol Black, GPs and OH

• Little evidence to suggest GPs understand the
  DDA, or give advice on adjustments.

33
Uncertainty over role of OH

• In most cases where a doctor had provided a
  report, specialist role was stated
• Unclear whether report from occupational
  physician was from accredited specialist,
  Associate, Diplomate or doctor with no OH
  qualifications

34
What is a specialist report?

• Patients may be seen, and reported on, by
  trainees rather than consultants, particularly in
  psychiatry.
• Experience as well as qualifications should be
  considered (particularly Associates who have been
  in full-time OH for many years)
• Tribunals must have issues of training and
  expertise explained to them in each case to
  ensure they understand

35
Uncertainty over role of OH

• Tribunals have at times accepted reports from
  treating physicians in preference to opinion or
  advice from an occupational physician
• Case law stating opposite
• Surrey Police v Marshall 2002 UKEAT IRLR 843
• Jones v The Post Office 2001 EWCA IRLR 384

36
Do treating physicians provide unbiased reports?

• Treating physicians are expected to be patient
  advocate
• Govt acknowledges treating physicians will often
  simply repeat what patient requests in report
  without any supporting evidence
• Mowlam A, Lewis J.  Exploring how General
  Practitioners work with patients on sick leave A
  study commissioned as part of the 'Job Retention
  and Rehabilitation Pilot' evaluation.  DWP
  research report 257.  2005
• Reports from treating physicians must be assumed
  to be biased

37
Malingering

• Clark J stated that as the occupational physician
  had not found that the employee was
  'malingering', he must have been genuinely sick.
• Scottish Courage v Guthrie 2004 EAT 0788/03/MAA

38
Malingering

• In one Australian case where four
• orthopaedic surgeons labeled a patient as
• a malingerer, three were shot, two of
• them fatally.
• Parker N. Malingering a dangerous diagnosis.
  Medical Journal of Australia. 19791568-9.