DISABILITY DISCRIMINATION
DEFINITIONS AND DANGERS
Declan O’Dempsey
October 2009
Contents
Defining disability – capturing a continuum
Discusson of Chacon Navas, Paterson,
Cummings,Guidance on Matters to be
Taken into Account in Determining
Questions Relating to the Definition of
Disability and section 1
The Equality Bill and disability: combined
discrimination and adjustments
Chacón
Navas
• Facts: Eurest specialises in catering.
On 14 October 2003 Chacon Navas
was certified as unfit to work on grounds
of sickness and, according to the public
health service which was treating her,
she was not in a position to return to
work in the short term. “The referring
court provides no information about Ms
Chacón Navas' illness.”
• This is how not to do a reference!
ECJ judgment
…autonomous and uniform interpretation
throughout the Community, having regard to the
context of the provision and the objective
pursued by the legislation in question.
the concept of 'disability' refers to “a limitation
which results in particular from physical, mental
or psychological impairments and which hinders
the participation of the person concerned in
professional life”.
Chacon Navas
The importance which the Community legislature
attaches to measures for adapting the
workplace to the disability demonstrates that
it envisaged situations in which participation
in professional life is hindered over a long
period of time. In order for the limitation to fall
within the concept of 'disability', it must
therefore be probable that it will last for a
long time.
Not included
•
•
adverse and substantial effect
that these be on normal day-to-day activities.
•
Instead uses the concept of participation in
professional life
Is Chacon Navas adequate?
Does uniformity require additional UK
elements to be removed?
•
•
Deeming in the UK
The definition can be extended and is in particular
cases in the UK;
What about excluded cases?
Addiction to any substance; tendency to
steal; tendency to physical or sexual abuse
of other persons; hayfever; tattoos; and
exhibitionism.
These are not popular causes! Are these
exclusions compatible with Chacon Navas?
“a limitation which results in particular from physical,
mental or psychological impairments”
In the UK they may cause impairments which
qualify (e.g. Murray v Newham CAB,
Power v Panasonic)
However if they are caused by qualifying
impairments, they are excluded! (Edmund
Nuttall Limited v Butterfield)
There are also conditions to which moral
opprobrium attaches – (obesity - Liggins)
Paterson v Met
Police
Police officer – dyslexia – processes for
determining promotion – exams and
assessments
Are these normal day to day activities?
Guidance D5: not "activities which are normal
only for a particular person or small group
of people". Nor "work of a particular form…,
playing a particular game…, playing a
musical instrument“.
Activities at work
circumstances which only arise at work can
give rise to normal day to day activities (see
Cruickshank )
Paterson - taking an assessment was a normal
day to day activity without regard to ECJ
authority
BUT the activities which are relevant to
participation in professional life are NDTDA
Cumming
I accept that applying for entry into a
profession is something which many people
do. I am not, however, persuaded by the
claimant's argument that that is sufficient for
the purposes of her argument. Making an
application to enter a profession or, indeed,
for any job does not imply any particular
physical activity.
Cumming
What we take from the Court's use of the term
‘professional life’ is that when assessing, for the
purposes of section 1 of the DDA , whether a
person is limited in their normal day to day activities,
it is relevant to consider whether they are limited in
an activity which is to be found across a range of
employment situations.
Adams: something that a person does only at work may
be classed as normal if it is common to different
types of employment
Who’s right?
Chacon Navas doesn’t refer to NDTDA
Uniform concept requires the concept of
hindering professional life to be applied.
Impact on NDTDA may water this concept down
unduly
Paterson on the other hand does not in fact
simply apply Chacon Navas – “activites
related to”
Equality Bill
Questions
1.
2.
3.
4.
Should the Guidance be revised and how?
“likely” Boyle
Deemed effects – clarification?
Definition of disability in clause 6
Coleman and the need for a person with a disability.
5. Combined Discrimination
6. Particular disability and combined
discrimination.
7. Comparators and reasonable adjustments