Shepherd and Wedderburn LLP
  February 2, 2006 - Scotland

Disability Discrimination Act 2005
  by Kelly Harris

In April 2005 a new Disability Discrimination Act was passed by Westminster. The Act extends existing non-discrimination legislation, primarily the Disability Discrimination Act 1995. While some provisions of the Act came into force in December 2005, many others will be coming into force over the course of 2006. It is essential that businesses are aware of their new responsibilities under the Act and prepare for its implementation. The principle change that came into force in December 2005 was an amendment to the definition of "a disabled person" under the 1995 Act. The 2005 Act extends this definition by providing that people with HIV, cancer and multiple sclerosis will be covered by the Act from the point of diagnosis, rather than from the point when the condition has some adverse effect on their ability to carry out normal day-to-day activities. In addition, the amended definition removes the requirement that a mental illness must be 'clinically well recognised'. The government have suggested this extends protection of the Act to at least another 175,000 people in the UK. The remainder of the Act looks likely to come into force in June and December 2006. A key feature of the Act is the imposition of a positive duty on public sector bodies to promote disability equality for the public sector (paralleling the race equality duty), which is due to come into force in December 2006. This new duty will require public bodies, in carrying out their functions, to have due regard to the need to eliminate unlawful harassment and discrimination and the need to promote equality of opportunity between disabled and other persons. The Act will also extend the non-discrimination provisions of the Act to most functions of public authorities from December 2006. This will mean that, in general, it will be unlawful for a public authority to treat a disabled person less favourably in the exercise of any public function they carry out, not just those relating to employment or service delivery as it was previously. Some specific functions will, however, be excluded from compliance with the Act to ensure the public authority is able to act independently, particularly where it has a legislative function. For example Ministers when carrying out their legislative functions are excluded from compliance with the Act, as are the Crown Prosecution Service when taking a decision whether or not to prosecute an offender. Other changes likely to come into force in December 2006 include: the application of the Act to all land based public transport; extending the duty of reasonable adjustment to private clubs with 25 or more members as well as commonhold premises and those who let or manage rented properties. By 1 January 2020 all rail vehicles will be required to comply with accessibility regulations, which apply to the refurbishment of rail vehicles and introduce certification and enforcement provisions. The Act also extends criminal liability for discriminatory advertising to publishers of such advertisements as well as those that place them. Public bodies are expected to develop Disability Equality Schemes in consultation with disabled people by December 2006. These should cover the recruitment, development and retention of disabled employees, educational opportunities available to and the achievements of disabled students and the extent to which functions take into account the differing needs of disabled people. The Disability Rights Commission has produced a series of guides and case studies on the Act for employers and services providers to help them make their businesses and services more accessible to disabled people. The Department for Work and Pensions has also produced a guide entitled Adjusting to Better Business to highlight the obligations for small and medium sized businesses under the DDA.


Footnotes:
Kelly Harris is a public law specialist with commercial law firm Shepherd and Wedderburn. +44(0)131 473 5382