The Disability Discrimination Act 1995 (DDA) introduced significant new rights for disabled people, including the right to complain to a tribunal if discrimination occurs during the course of recruitment or employment. The Act has similar provisions to the Sex Discrimination Act and the Race Relations Act although the meaning of discrimination is modified and the provisions for employment protection do not apply to organisations with fewer than 15 employees.
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Pharmacies will have to consider how they can provide access for disabled people within the contraints of affordability and planning permission (this building is Grade II* listed) |
An impairment is to be regarded as affecting normal day-to-day activities if it affects one of the matters below:
People with sensory impairments such as deafness, blindness or partial sightedness are included in the protection of the legislation. Certain severe visible disfigurements such as skin diseases or birthmarks are to be treated as having a substantial adverse affect on the ability of the person concerned to carry out normal day-to-day activities.
An impairment which is corrected by medication or special aids/prostheses or treatment would still be covered by the Act's definition of disability. This would not, however, cover people with impaired sight where the impairment was corrected by spectacles or contact lenses.
The Act also covers individuals with progressive conditions such as cancer, multiple sclerosis, muscular dystrophy or HIV infection as soon as the condition affects employment activities in any way. The Act does not cover someone diagnosed as having a particular disease who is, as yet, without symptoms of their illness, nor does it protect those with a latent genetic or predisposition to a disability.
Certain illnesses are specifically excluded from the Act. These include:
The DDA defines two ways in which employers could discriminate:
It is unlawful to discriminate against a disabled person in respect of:
Discrimination would arise if the less favourable treatment was due to the disability. Employers could justify less favourable treatment if they could show that the treatment would have been justified even when an adjustment had been made.
For example, before an employer refused a job for a receptionist to an applicant with poor hearing because he or she could not use the telephone, the employer would have had to consider the option of providing a telephone amplifier or some other telecommunication device. It might be that to install such equipment would be unreasonably expensive for the employer or the equipment might still not enable the applicant to do the job. In this case the employer might be safe in not offering the job to the disabled applicant.
The important thing is to demonstrate that all the options have been considered before the decision is made.
The employer is under a duty to try to accommodate the needs of a disabled person within the workplace. This is not a general obligation; the duty is to consider what is needed for a particular individual. This might be a job applicant or someone who had become disabled in the course of employment.
The kind of adjustments that an employer should consider include:
If an employer's premises are occupied under a lease, there might be problems in making adjustments to the premises, such as whether the occupier would be entitled to make the alteration with the written consent of the lessor. Consent should not be unreasonably withheld but it might be given subject to reasonable conditions. Constraints in a lease regarding alterations would not alleviate an employer's duty to make reasonable adjustments. If a tribunal decided that consent was unreasonably withheld by the lessor it could order the lessor to pay compensation to the complainant.
There are a number of incentives and means of assistance available to help with the cost of adapting premises and/or purchasing equipment.
Where an employer is uncertain of a disabled person's ability to carry out a job, it is possible to obtain a subsidy towards the disabled employee's salary for an initial period while the employer is given time to assess the disabled person's abilities. Where people who are disabled incur particularly large travelling costs and are unable to use public transport they may be entitled to financial assistance.
The Act states that reasons for dismissing an employee must not be discriminatory but it would be reasonable to dismiss someone with, for example, multiple sclerosis if the illness made it impossible to perform the main functions of the job and if it was not reasonable and practical for the employer to make an adjustment.
However, employers should be very wary of dismissing someone in these circumstances. Proper procedures must be applied and National Pharmaceutical Association members would be well advised to contact the association first.
From October 1, 1999, phase three of the DDA was introduced. It requires that service providers, including community pharmacies, have to make "reasonable adjustments" for disabled people to enable them to have better access to services. The Act makes it unlawful for a service provider to discriminate against a disabled person: by refusing to provide any service which it provides to members of the public; in the standard of service which it provides to the disabled person or the manner in which it provides it; or in the terms on which it provides a service to the disabled person. The rights of access provisions apply to all companies irrespective of size.
A revised code of practice on "rights of access to goods, facilities, services and premises" has been drawn up and the main recommendations and requirements are discussed here.
Employers will need to audit the way in which the services are offered to the public and make sure that the staff know what is expected of them.
There are three areas which should be considered:
In making adjustments, service providers are only required to take such steps as are reasonable. Obviously what is reasonable will depend upon factors such as the type of service and the size of the business.
Wheelchair access is often difficult or impossible in some small pharmacies. It might not be practical to build a ramp, planning consent might not be granted or the building might be listed. In these cases a way round this might be to consider installing a bell at wheelchair height at the front door with a sign telling the disabled person that someone would be happy to come and serve them at the door.
The code of practice suggests that the following factors should be considered:
Pharmacists will need to consider whether they have policies and practices which have the effect of discriminating against disabled people, whether the provision of equipment or other help could improve accessibility to their premises and in the event that there were physical features of the premises which might exclude disabled people, would it be possible to provide the service by other means. Staff should be consulted about whether they know of any problems that they have experienced with disabled customers.
The local disablement officer, situated at the Job Centre, will be able to give advice and will know if there are any funds available to assist with alterations in or around the pharmacy. It is not expected that vast sums of money will have to be spent or anything that would cause too much disruption to the business or other customers be done.
Remember, employers with fewer than 15 employees do not have to comply with the legislation as far as employment is concerned, but they must still provide the best access possible for disabled people. The Act does recognise, however, that small businesses could not be expected to provide the level of access for the disabled that a large business could and must provide.
Mrs Elson is head of human resources at the National Pharmaceutical Association