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					Part III of the Disability Discrimination Act – February 2005

PART III OF THE DISABILITY DISCRIMINATION ACT INTRODUCTION
The Disability Discrimination Act 1995 (Amendment) Regulations 2003 came into force on 1st October 2004. Better known as part III of the DDA, this bring UK legislation into line with the European Union Equal Rights Directive so far as it relates to Disability Discrimination. The regulations introduce the concept of „direct discrimination‟; widened protection to workers in small organisations; and expanded the „reasonable adjustment‟ that service providers have to make to include physical changes to their premises. Disabled people make up 20% of the workforce and around 10 million people in Britain have a disability or long-term health condition. Disabled workers often experience exclusion and discrimination and UNISON has a key role to play in organising and bargaining for a fair deal for disabled members. This factsheet covers the recent changes in legislation. It also summarises workers rights under the DDA and the major implications the DDA has for the way unions operate.

HOW DOES UNISON VIEW DISABILITY?
UNISON supports the Social Model of Disability. We believe it is the way society is organised that creates barriers to inclusion and prevents disabled people from taking an equal part in life. As a union we campaign on disability issues including:  Inaccessible workplaces  Information systems that don't allow for disabled people's access needs  Negative attitudes and prejudices

THE DISABILITY DISCRIMINATION ACT
The Disability Discrimination Act 1995 (DDA) was a big advance for Disabled peoples‟ rights. It was introduced in stages and the final stage came into law on 1st October 2004. The DDA abolished the idea of being „registered disabled‟ and created a new definition. According to the Act, a person has a disability if they have: “a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities” The DDA definition of disability is narrower than the social model of disability, but there are still a wide variety of people who have protection under it. The Act doesn‟t specifically list medical conditions, and whether a person is covered depends on the effect of their own impairment. Now that it is fully in force, the DDA protects people in:  employment
UNISON Disabled Members - e-mail: disabilityissues@unison.co.uk

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Part III of the Disability Discrimination Act – February 2005
   access to goods, facilities and services the management, buying or renting of land or property education

It is illegal to discriminate against people on the grounds of their disability, and employers and service providers have to make „reasonable adjustments‟ for Disabled people.

THE POSITION NOW FOR SERVICE PROVIDERS
The recent changes mean that service providers – including local authorities, the NHS, and utility companies - have to make reasonable adjustments to the physical features of their premises to overcome barriers to access. For example they may have to install ramps or a lift if there is only access by stairs. Service providers were already prohibited from treating Disabled people less favourably than other people for a reason related to their disability. They also have to make reasonable adjustments for disabled people such as providing extra help or providing their services in a different way. For example a hairdresser whose shop is up a flight of steps and inaccessible to people with mobility impairments, could offer to cut a Disabled person‟s hair in their own home. Education providers (schools, colleges, universities, and providers of adult education and youth services) are required to ensure that they do not discriminate against disabled people. This includes the provision of auxiliary aids (for example, using radio microphones to assist hearing impaired students) as a „reasonable adjustment‟. For more advice on obligations on service providers, see the Disability Rights Commission website - www.drc-gb.org/open4all/service/index.asp

THE RECENT CHANGES FOR WORKERS
Part III of the DDA, which came into force on 1st October 2004, made a number of amendments to the regulations. There are 10 significant changes that affect Disabled people as workers: 1) All employers, including small employers (15 or fewer employees) are now included. This may particularly affect members working for small community and voluntary organisations. 2) The DDA now covers the police, firefighters, barristers and partners in firms (for example law firms). Contract workers; office holders; self employed people who are contracted to work with an institution on a specific piece of work; people undertaking work experience for a limited period; trustees and managers of occupational pension schemes; and organisations which provide employment services are also covered. 3) A new definition of „direct discrimination‟ means it is now illegal treat a disabled person less favourably than a non-disabled person in truly comparable circumstances on the grounds of their disability. This can never be justified, whereas it is possible to justify „disability related discrimination‟ – less favourable treatment for a reason related to the disability but not the disability itself.

UNISON Disabled Members - e-mail: disabilityissues@unison.co.uk

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Part III of the Disability Discrimination Act – February 2005
4) Harassment of Disabled people is now illegal. This means conduct that, as a result of a person‟s disability, has the purpose or effect of „violating their dignity‟ or „creating an intimidating, hostile, degrading, humiliating or offensive environment‟. 5) Employers now have to make reasonable adjustments to „provisions, criteria and practices‟, not just „arrangements‟. This covers both the arrangements for determining to whom employment may be offered and the terms, conditions or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded. 6) Removing the employers‟ „justification‟ defence for not making a reasonable adjustment. They „should focus on what adjustments were needed and whether they were reasonable‟ and cannot justify simply refusing to make them. 7) The time limit on complaints of discrimination against ex-employees (for example about employer references) has been removed. 8) Qualification bodies for professional and trade qualifications now have to make reasonable adjustments for disabled people and cannot treat them less favourably. However, this does not cover „general‟ qualifications such as GCSE‟s and „A‟ levels which do not relate to a particular trade or profession. 9) Instructing someone else to discriminate is now illegal. 10) The burden of proof now favours the complainant in legal cases. So once a complainant has shown a prima facie case that discrimination has occurred, it is for the employer to prove that unlawful discrimination has not occurred.

THE POSITION NOW FOR WORKERS
It is illegal for employers to discriminate against workers on the grounds of disability, or not to make „reasonable adjustments‟ for Disabled people. Under the DDA, discrimination occurs where:  a disabled person is treated less favourably than someone else  the treatment is for a reason relating to the persons disability  the treatment cannot be justified Discrimination also occurs where;  there is a failure to make a reasonable adjustment for a disabled person  that failure cannot be justified Direct Discrimination (new from October 2004) occurs where:  a disabled person is treated less favourably  the treatment is because the person is disabled – “because of the employer‟s generalised, or stereotypical, assumptions about the disability or its effects” Discrimination now specifically includes both constructive dismissal and discrimination against a former employee (post-employment discrimination), for example in the writing of reference for past employees. It is also against the law for an employer to publish a discriminatory employment advertisement. For more advice on individual rights, see UNISON‟s “The Law and You” (stock number 1895 from UNISON communications) which provides a clear guide to key employment rights, including disability discrimination (chapter 10). However, despite these legal protections, the reality is that many Disabled people are fearful of prejudice and misconceptions from both employers and fellow workers. This is especially the case for people with mental impairments.
UNISON Disabled Members - e-mail: disabilityissues@unison.co.uk

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Part III of the Disability Discrimination Act – February 2005

Some people may choose to inform their employer in confidence of their disability, and some may choose not to inform them at all. This is their choice and it is important not to „out‟ disabled members without their consent. Obviously, if a worker decides not to tell their employer about their disability because they are afraid of discrimination, it may be difficult to get reasonable adjustments and work capability may suffer as a result. Workers do have the right for „reasonable adjustments‟ to be made for them by their employers. Many adjustments cost little or nothing and are often a matter of flexibility and developing a creative approach to working practice, such as, enabling flexible hours working, allowing food breaks, or allowing paid time off to attend doctors‟, physiotherapists or counselling appointments. The disabled person themselves should be closely involved in deciding what adjustments are needed. Other adjustments might involve:  making changes to premises, installing voice-activated computer software, getting telephones adapted with an amplifier or text telephones  translating instructions and reference manuals into accessible formats, such as large print, Braille or audio cassette  providing a reader service or sign language interpreter, giving feedback in particular way or working in a private room rather than an open plan office. Negotiating a „reasonable‟ adjustment depends on the size of the employer‟s resources and the access needs of the worker. This means there is an important role for union reps, branches and regional officers in supporting individual disabled members and helping argue their case.

NEGOTIATING AND ORGANISING
Despite the fact that one-in-five of the working age population is disabled, long term unemployment is high and career opportunities historically have been found only in low paid, low skilled occupations. UNISON branches have a valuable role to play in promoting disabled peoples‟ rights for one-fifth of the workforce by ensuring that Disabled people are able to compete equally for jobs, they have access to education and training opportunities and do not suffer less favourable treatment from employers‟ policies. Branches should review their agreements and employers policies. A campaign around negotiating a new agreement on disability can raise the issue in the workplace and, apart from securing better conditions, give the opportunity to recruit and organise disabled workers – turning members into activists. Disabled members are often the people who understand disability issues best and inviting Disabled members to join a working group to help with negotiations could be the first step towards a branch disabled members officer, or a self-organised group. After an agreement is negotiated, training for managers and other staff is important to ensure it‟s implementation.

UNISON Disabled Members - e-mail: disabilityissues@unison.co.uk

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Part III of the Disability Discrimination Act – February 2005

WHAT DOES IT MEAN FOR OUR BRANCH AND UNISON?
Unions are covered by the DDA as well as employers. As trade organisations they cannot discriminate against a disabled member in the benefits they provide (for example representation); by refusing or deliberately omitting them from access to benefits; or by subjecting them to any other detriment. If there is an access problem, the union “must take such steps as are reasonable to prevent the provision, criterion or practice, or the physical feature, (as the case may be) from placing the disabled member at a substantial disadvantage.” This means that unions have to make adjustments if they know or could reasonably expected to know about a member‟s disability. Members cannot be asked to pay extra because of disability (i.e. for large print or Braille materials). Good practice advice includes:  Not making assumptions - disability takes many different forms.  Ensuring confidentiality – disabled people should not be „outed‟ without their consent. Some adjustments may require some others members to know about a disability, but this should be done with the member‟s consent.  Asking what access needs Disabled members have as part of standard practice for all events and meetings.  Publicising that documents are available in a range of formats – electronic, large print, on coloured paper. IT means this is easy and cheap.  Make sure all union reps are aware of UNISON‟s disability policy  Planning ahead so that people with different access needs can take part in events. Branch meetings should be held in venues that provide level access, timetables and programmes for events should run according to the published schedule and discipline should be adhered to during meetings so that everyone can take in all contributions.  Ensuring union reps understand the provisions of the DDA and that health and safety issues are not used to discriminate against disabled people. Blanket bans on people with certain impairments doing certain jobs on health and safety grounds are likely to be illegal because they do not look at exactly how an impairment affects a specific person. Fire risks are sometimes used to discriminate against Disabled people, but these can be alleviated by providing flashing lights as well as auditory devices; establishing a “buddy” system to ensure wheelchair users get help, and named guides for visually impaired people, for example.  Encourage activists to go on disability equality training.  Ensure that procedures are in place for effectively dealing with any allegations of disability discrimination. Accessibility of union premises is an important issue for branches, and irrespective of the law Disabled members should be able to play a full part in the union and access its services. Where a union rents or uses the premises of an employer (or other organisation), working out exactly who has responsibility for making physical adjustments to the premises is complex. However the Disability Rights Commission recommends that landlords should “anticipate that they may have responsibilities to make the common parts [of the building] accessible to disabled people.” As far as union premises are concerned, landlords may not unreasonably withhold consent for changes to enable access.
UNISON Disabled Members - e-mail: disabilityissues@unison.co.uk

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Part III of the Disability Discrimination Act – February 2005
If access to union premises is impossible or unreasonably difficult for disabled people, the branch should provide a means of avoiding the physical feature concerned, or a reasonable alternative arrangements for disabled people. For meetings the branch should consider using other premises that offer access. When representing or meeting with members, branch officers and stewards should consult with the member about their preferred choice of site. It is always best to consult with the Disabled member about their access needs, and if a service or facility is not available further consultation should take place to discuss alternatives. UNISON is a large organisation and would be expected to make significant adjustments for it‟s Disabled members. For example arranging for car parking spaces at union offices for disabled activist who cannot use public transport, or providing meeting papers in large print for a member who is visually impaired and wishes to attend a branch meeting. For directly work-related issues, try to negotiate with the employer for them to make the adjustments. A deaf member may require for a language interpreter for a meeting with a union representative to discuss a grievance, but branches should argue that it is the employer‟s responsibility to provide this. Branches may need to build in a facility for „reasonable adjustments‟ for Disabled union representatives into their facility time agreements. Workers may be able to use existing adjustments in their workplace (such as IT software) to access union materials.

SELF ORGANISATION
Disabled people are marginalised and discriminated against in society. UNISON‟s Disabled members Self-Organised Group enables Disabled members to play a full part in their union; campaign for their rights at work; recruit disabled people to UNISON and support union negotiating for disabled workers equality. There is a national conference and committees at all levels of the union from national level to branch level. Many branches have dedicated branch disabled members‟ officers. UNISON‟s disabled members web page contains recent news, legal development and information about disabled members‟ self-organisation. It is at www.unison.org.uk/disabled, or see the contact details below.

WANT MORE INFORMATION?
The first step for individuals in getting advice and support is their local union representative. If branches need support in disability cases they should approach their regional officer for advice. Bargaining Advice on disability issues is available in “Negotiating to end disability discrimination”, stock number 1924 from UNISON communications or available on the Bargaining Equalities Zone – www.unison.org.uk/bargaining/equalities.asp. The Disability Rights Commission (DRC) is an independent body established to stop discrimination and promote equality of opportunity for disabled people. It‟s website is www.drc-gb.org and there is a useful section on individual rights - www.drcgb.org/knowyourrights/disabilityandemployment.asp.

UNISON Disabled Members - e-mail: disabilityissues@unison.co.uk

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Part III of the Disability Discrimination Act – February 2005
The DRC also has a helpline that gives individual advice from 8am to 8pm, Monday to Friday - Telephone 08457 622 633, Textphone 08457 622 644, Fax 08457 778 878, on the web at www.drc-gb.org/whatwedo/helplineenquiry.asp or by post to DRC Helpline, Freepost MID 02164, Stratford-upon-Avon, CV37 9HY. More information on the duties of trade union to their members is contained in the Disability Rights Commission‟s “Code of Practice - Trade Organisations and Qualifications Bodies”. This gives examples of good practice and may be given in evidence in legal proceedings, and section 7 refers specifically to trade unions. It is available online at www.drc-gb.org/publicationsandreports/pubsemployment.asp or from the DRC. UNISON is affiliated to the British Council of Disabled People, which is a national umbrella organisation set up by disabled people to represent their interests. It is at Litchurch Plaza, Litchurch Lane, Derby, DE24 8AA, Telephone: 01332 295551, Text: 01332 295581, Fax: 01332 295580, Email: general@bcodp.org.uk, Website www.bcodp.org.uk. UNISON welcomes requests for this document to be made available in other accessible formats, please contact us at the address below. We welcome your comments on this guidance, please sent any comments to the address below. Gloria Foran, Membership Participation Unit, UNISON, 1, Mabledon Place, London, WC1H 9AJ Tel: 020 7551 1785, Text: 020 7388 6204, Email: disabilityissues@unison.co.uk. For help when you need it, call UNISONdirect, UNISON‟s information and advice phone line service for members on 0845 355 0845 (voice) or 0800 0 967 968 (textphone) between 6 am and midnight, Monday to Friday and 9 am to 4 pm on Saturday.

UNISON Disabled Members - e-mail: disabilityissues@unison.co.uk

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