Whilst the guidance in itself does not form part of the Disability Discrimination Act 2006 (“DDA”), the DDA makes provision for guidance to be issued on the definition of disability, and a court deciding whether a person is disabled for the purposes of the DDA must take into account any relevant aspects of the guidance. Although the court ultimately makes the decision as to whether a person meets the definition of “disabled” under the DDA and benefits from its protection, this guidance could prove useful for businesses to understand how the courts may reach that decision.
The definition of disability included in the DDA is that a person will be considered disabled “if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.” The four main elements to the test are broken down within the guidance as:
- the person must have an impairment that is either physical or mental;
- the impairment must have adverse effects which are substantial;
- the substantial adverse effects must be long-term; and
- the long-term, substantial adverse effects must be effects on normal day-to-day activities.
The key terms within the above criteria are also addressed, focusing on areas where it may not be immediately obvious that a person would be considered to have a disability, including practical examples. One point that the guidance emphasises which is important to remember is that it is the effect an impairment has which must be considered, not the cause of the impairment (unless the cause falls into one of the excluded conditions, also detailed within the guidance).
A copy of the guidance note for businesses can be accessed here.
Also approved at the same sitting of Tynwald was a code of practice explaining the duty not to discriminate against a disabled person placed on those providing goods, facilities or services to the public and those letting, selling or managing premises. In addition, the meaning of the duty to make “reasonable adjustments” to services or access to premises is also addressed.
A copy of the code of practice can be accessed here.
Island businesses would be well advised to now consider both the guidance and the code of practice.
If you wish to discuss the DDA’s impact on your business or how you can ensure compliance as regards the guidance issued, or indeed, any other area of employment law please contact Leanne McKeown or Tara Cubbon in our specialist employment team.