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Seizure 1999; 8: 412–420 Article No. seiz.1999.0329, available online at http://www.idealibrary.com on

Epilepsy, employment and the Disability Discrimination Act. Does legislation make a difference?

† LINDA DELANY & JOANNA ELIZABETH MOODY

School of Law, The Manchester Metropolitan University, Elizabeth Gaskell Campus, Hathersage Road, Manchester M13 0JA, UK

The Disability Discrimination Act 1995 confers limited but significant rights on people with disabilities in the United Kingdom. In this article we focus on the protection that the Act offers to people with epilepsy in the sphere of employment. We examine the exempt categories of employment and the extent to which epilepsy qualifies as a disability for statutory purposes. We go on to explore the impact of the new law on the recruitment and employment experience of people with epilepsy. The shortcomings of the legislation are highlighted and improvements, which would benefit people with epilepsy, are recommended. Claims featuring epilepsy, brought under the Act, are analysed to illustrate how the legislation is being interpreted and applied. c 1999 BEA Trading Ltd

Key words: Disability Discrimination Act 1995; epilepsy; employment; recruitment; remedies; enforcement.

INTRODUCTION ACCESS TO STATUTORY PROTECTION

The employment provisions of the Disability Discrim- Only people able to prove that they have1, or have ination Act 1995 (hereafter referred to as the DDA) had2, a disability, are eligible for DDA protection. came into force on 2 December 1996. This article There is no cover for people wrongly perceived or examines the rights that they confer on people with diagnosed as having a disability, even if the perception epilepsy and the residual scope for enhancing those or misdiagnosis attracts discrimination. The (Conser- rights. Particular attention will be paid to the criteria vative) Government, which introduced the DDA, con- which govern access to the protection offered by the sidered that the law ‘would not be credible if it em- DDA, the duties it imposes on employers and to en- braced people who were not fairly or generally rec- forcement methods. By exploring the impact of the ognized as disabled’3. This restrictive approach is, DDA on the recruitment process and employment, we however, unhelpful in the context of epilepsy with its show that legislation has only partly succeeded in dis- unusually high incidence of misdiagnosis4. Patients pelling the problems faced by people with epilepsy in wrongly diagnosed as having epilepsy, who suffer un- relation to work. fair treatment as a result, have no redress under the DDA cases, particularly those involving applicants DDA. It is worth noting that their counterparts in the with epilepsy, will be referred to throughout the text. United States fare better under the Americans with We should explain that claims alleging disability dis- Disabilities Act 1990 which protects against discrimi- crimination are first heard by Employment Tribunals nation resulting from misclassification5. (formerly known as Industrial Tribunals) and that ap- peals lie to the Employment Appeal Tribunal and How, then, is disability defined in the DDA? Ac- thence to the Court of Appeal. It should be noted at the cording to Section 1(1), people have a disability if they outset that only Court of Appeal and Employment Ap- have a physical or mental impairment which has a sub- peal Tribunal judgements set binding precedents, thus stantial and long-term adverse effect on their ability providing authoritative interpretations of the new law. to carry out normal day-to-day activities. People who The decisions of Employment Tribunals do not have have had a disability in the past are protected by virtue to be followed by other Tribunals. of Section 2. Although it is uncertain whether Members of Par-

∗ Author to whom correspondence should be addressed. liament regarded epilepsy as a ‘mental’ or ‘physical’

1059–1311/99/070412 + 09 $12.00/0 c 1999 BEA Trading Ltd

Epilepsy, employment and the Disability Discrimination Act 413 impairment, there is no real doubt that the condition ployers to argue that a particular person falls outside is covered6. Meeting the impact requirements of the its ambit. It follows that DDA claimants with epilepsy DDA definition of disability may, however, be more should be prepared to present medical evidence show- problematic for people with epilepsy. Where epilepsy ing that their condition meets the statutory require- has little or no impact on day-to-day activities be- ments. cause it is successfully controlled by medication, it Research shows that both applicants and respon- falls within the ambit of the DDA because of the spe- dents are worried by the cost of medical evidence. cial provisions in relation to medical treatment of dis- They are also concerned that the usual sources of abilities contained in Schedule 1, Paragraph 67. How- medical evidence, particularly GPs and occupational ever, people not on medication, who experience only health professionals, are unequal to the task of relat- simple partial seizures, or sleep seizures, will have dif- ing their expertise to DDA requirements, because of ficulty showing the ‘substantial and long-term adverse lack of familiarity with the DDA approach, definitions effect’ on their ability to carry out day-to-day activi- and terminology12. Objective appraisals of the medi- ties which the DDA insists upon. There may also be cal risks to self and others associated with a particular people, again not on medication, whose epilepsy did individual doing a particular job are hard to come by13. once have a substantial adverse effect, but fails the In Holmes v. Whittingham & Porter Ltd14, the medi- ‘long-term’ test because the impact was shorter than cal report used as the basis for a risk assessment of the the 12 months fixed as the minimum by the DDA, and applicant who had epilepsy was prepared by the ap- is unlikely to recur8. plicant’s GP and the employer’s medical adviser, also As the first major study of the DDA’s operation a GP. It advised against continuing to let Mr Holmes shows9, some employers do challenge claimants on work in his customary environment and capacity, and, each component of the definition of disability. Al- as a result, Mr Holmes lost his job. The Tribunal which though applicants with mild forms of epilepsy may dealt with the case took the view that the employ- well lose their case on this preliminary issue, we ers should have consulted a specialist in occupational should point out that out of the monitored ‘heard’ medicine or epilepsy before sacking their employee, (as opposed to settled or withdrawn) cases involving in order to investigate the potential benefits of chang- epilepsy which we could trace, none failed on the def- ing the latter’s medication, and/or adjusting his work- inition of disability10. This may, unfortunately, merely ing conditions. Even where experts become involved, reflect the fact that would-be claimants dared not pur- however, problems of risk assessment may persist: in sue their claims because their epilepsy did not meet Smith v. Carpets International UK plc15, another case the requirements of the DDA definition. involving epilepsy, a report by the applicant’s neurolo- In order to protect everyone diagnosed as having gist, to the effect that the applicant could safely resume epilepsy from discrimination, the DDA should omit work, was successfully challenged by the employer’s the definitional requirement of long-term, substantial doctor on the basis that the neurologist had no insight impact and cover any disability, however short-lived into the hazards of Mr Smith’s work environment. The or slight. Why should mildly disabled people be left case of Bragg v. London Underground Ltd16 (involv- to fend for themselves when they fall victim to preju- ing genetic hearing loss) indicates that where health dice? They may be less at risk of meeting discrimina- experts disagree among themselves, the employer is tion, but when they do meet it, they need redress as entitled to make a choice provided that the chosen ex- much as severely disabled people do. This is particu- pert opinion is not obviously flawed. larly so with epilepsy: Even where people with epilepsy can prove them- selves to be within the DDA definition of disability, . . . very few people have experience of access to protection against disability discrimination it and so the word gets around: ‘Of course will be denied if the employer suspected of such dis- you know, he’s got epilepsy’. Most peo- crimination falls within one of the statutory exemp- ple do not have a clue what the condition tions. The employment provisions of the DDA do not is, how it exhibits itself, its frequency, or apply to businesses with fewer than 15 employees, nor what effect it has on a person’s life—it to fire services, the armed forces, the police and other just sounds horrible11. specified employers17. Widening the definition of disability to encompass The small business exemption significantly restricts conditions with minor and/or short-lived effects would the availability of protection under the DDA. Its im- suit job applicants and employees with epilepsy with- pact is potentially most serious for people with im- out unduly burdening employers, as the latter should paired mobility or who are forbidden to drive, as many have few problems accommodating mild disability in people with epilepsy are. This is because small busi- the workplace. It must, however, be acknowledged that nesses are often more accessible than larger ones, be- even a wide definition of disability will still permit em- ing within, or close to, residential areas, and often eas- 414 L. Delany & J. E. Moody ier to reach by public transport. Further, in many rural employer who asks for a driving licence, discriminates areas, small businesses are the norm, and people with against those people with epilepsy who by law can- epilepsy are therefore effectively deprived from any not hold a licence unless the employer can show that protection in such locations. travelling is a genuine job requirement which cannot Why was the exemption considered necessary? It re- reasonably be performed except by the job applicant flects Government concerns that small firms lack the driving him or herself. An employer who asks for will- financial resources and personnel expertise to imple- ingness to do shiftwork similarly discriminates against ment the protection conferred by the DDA on peo- people whose epilepsy makes shiftwork undesirable, ple with disabilities. However, built into the DDA, is if there is either no real need for shiftwork, or such a mechanism for ensuring that no undue burdens are a need exists but could be met by other employees placed on employers. As we shall discuss more fully within their terms of employment. Assessing an em- later, the latter have a complete defence against claims ployer’s genuine needs remains a problem: the DDA of discrimination if they had a substantial reason, ma- does not compel employers to specify essential job terial to the individual case, for what they did, and functions, and this means that job applicants continue took account of the duty to make reasonable adjust- to have difficulties gauging their own suitability for a ments where appropriate. Whether reasonable adjust- particular post, as well as the validity of any functional ments have been made must be judged in the light or health requirements listed by the employer. of, among other factors, the employer’s resources. So The DDA does not prevent employers enquiring even without a small business exemption, less effort whether someone has a disability. However, the Code need be made by poorly resourced businesses than by of Practice20 which accompanies the legislation, rec- well-resourced ones. This renders the exemption su- ommends that an employer should only ask about a perfluous and it should be removed from the DDA. disability if it might interfere with the performance of The occupation-based exemptions are predicated on necessary job functions21. It follows, in our opinion, concerns about the capacity of people with disabili- that employers, wishing to stay within the law, should ties to work in stressful and often hazardous posts or avoid general questions about epilepsy but could legit- work environments, but they too are superfluous. The imately enquire about symptoms likely to affect func- DDA already allows employers to reject employees or tional ability in a particular post22. job applicants if they cannot substantially match job From the perspective of the job applicant with requirements. There is no need for an additional pre- epilepsy, any pre-employment questions about sumption that certain jobs will always prove too de- epilepsy remain threatening. Truthful answers could manding for people with disabilities. At the time of cause the prejudiced employer to reject the applicant. writing, the Home Office seems prepared to concede The applicant could claim discrimination, but the em- this point in relation to the police, prison and fire ser- ployer might succeed in showing some plausible rea- vices, whereas the Ministry of Defence remains reluc- son other than prejudice, for the rejection. In any case, tant to surrender the armed forces exemption18. not all applicants who suspect disability discrimina- tion, are willing to put the matter to the test when it takes confidence, money and skill to do so. They also RECRUITMENT fear the possibility, that not their disability but some CV deficiency or a poor reference lost them the job, or Under the DDA, discrimination can take two forms. that others made stronger candidates. Tribunals do not One involves an employer treating people less infer discrimination merely from a failure to short-list favourably than others for a reason related to their a disabled applicant23. Furthermore, legal representa- disability, without being able to show that such treat- tives and advisers are reluctant to pursue recruitment ment is justified (Section 5(1)). The other entails an claims unless they involve particularly blatant dis- employer failing to comply with his or her statutory crimination24. It is perhaps not surprising that among duty of making reasonable adjustments to accommo- DDA claims, recruitment cases are least likely to be date, without being able to justify such a failure (Sec- successful25. tion 5(2)). It is unlawful for employers to discriminate Not disclosing a disability such as epilepsy at all is in either of these ways when recruiting or promoting not, however, to be recommended to job applicants. employees (Section 4). In the case of O’Neill v. Symm & Co26, the Employ- In relation to advertisements and job specifications, ment Appeal Tribunal ruled that as the employers had employers discriminate if they proscribe disabilities no knowledge of their employee’s disability, the em- which would not (after reasonable adjustments) affect ployee’s claim that they had treated her less favourably work performance, or if they insist on unnecessary as a result of her disability was bound to fail. Know- skills, achievements or qualities. A blanket exclusion ledge of merely the ‘material features’ of a disabil- of people with epilepsy is thus discriminatory19. An ity may suffice27 to implicate an employer, but what Epilepsy, employment and the Disability Discrimination Act 415 would count as the material features of the diverse Less favourable treatment seizure disorders labelled epilepsy? In Ridout v. TC Group28 the job applicant had declared that she suf- As we explained in the preceding section on recruit- fered from (medication-controlled) epilepsy. She at- ment, treating disabled people less favourably than tended a job interview in a room lit by fluorescent others is a key indicator of unlawful discrimination. lighting but did not inform the employers that such However, how should ‘less favourable treatment’ be 30 lighting could adversely affect her as a consequence understood? In the 1998 case of Clark v. Novacold the Employment Appeal Tribunal delivered a judge- of her epilepsy. As a result, she lost her claim that the ment to the effect that when deciding the issue of less employers had discriminated against her by failing to favourable treatment under Section 5(1) of the DDA, make reasonable adjustments. The Tribunal indicated it was necessary to compare the claimant with an able- that she should have been more forthcoming at her in- bodied employee in the same position. Mr Clark had terview by suggesting that the room was unsuitable for been absent from work on a long-term basis on ac- her. count of his disability, and was compared with an able- The DDA is designed to change the attitudes of em- bodied employee who had been or would have been ployers vis-a-vis` potential or actual employees with absent for as long a time. His employers convinced the disabilities and to encourage a balance of communi- Tribunal that both disabled and able-bodied employees cation and understanding between the two sides. It is would have been dismissed on account of their absen- not designed to persecute employers who remain un- teeism, and that Mr Clark was therefore not treated aware of a disability. Although it is true that rejecting less favourably than others. 31 claims, where the employers do not know of the dis- In the subsequent case of British Sugar v. Kirker , ability, may encourage employers to refrain from ask- the Employment Appeal Tribunal appeared to reject ing about disabilities at all, it may conversely prompt its own reasoning in Clark. The DDA was said not employees and job applicants to explain their particu- to require a like-for-like comparison, and therefore no lar needs, thus forcing employers to consider the rea- comparator was nominated. Clark went to the Court of Appeal32 which, confirming Kirker, ruled that treat- sonable adjustments which should be made to avoid ment was less favourable if the reason for it did not or liability and expensive claims. would not apply to others. Good practice in relation to recruitment requires at- The reason for Mr Clark’s treatment (the ultimate tention to the concerns of both employers and job ap- dismissal) was held to be his absence from work. His plicants. Employers must be prepared to identify job absence was a reason which related to his disabil- components, the health and functional requirements ity. The DDA required the treatment given to him of jobs and medical conditions deemed to be bars to (dismissal) to be compared with the treatment which jobs. No. questions about health or disability should would have been given to someone to whom that rea- be included in job application forms. Job applicants son, absence from work, did not apply. In other words could however be asked to complete health declaration the question was whether or not someone who had not forms, but these should be kept entirely separate from been absent from work would have been dismissed. the job application form and should not be demanded The answer was clearly no. or submitted until applicants receive notification, that In reaching this decision, the Court of Appeal re- they have been short-listed for interview, or of a con- flected the intentions of Parliament which, during the ditional job offer. Health declarations should be in- Second Reading of the Bill introducing the DDA, had spected only by those qualified to interpret them cor- been told by the Minister for Social Security and Dis- abled People: rectly. Medical examinations of job applicants should be prohibited in all cases until a conditional job offer The Bill is drafted in such a way that in- has been made. direct as well as direct discrimination can Principles of good practice similar to those just out- be dealt with. . . . A situation where dogs lined have been advocated for several years in rela- are not admitted to a cafe,´ with the effect tion to the recruitment of people with epilepsy29. They that blind people would be unable to en- should become part of the DDA regime by incorporat- ter it, would be a prima facie case of in- ing them into the Code of Practice. Failure to observe direct discrimination against blind people 33 a ‘good practice’ tenet should raise an irrebuttable pre- and would be unlawful . sumption of unlawful discrimination under the DDA. According to the original decision in Clark, the blind The expansion of, and increased access to occupa- people in the above example would not have been tional health services would need to be prioritized by treated less favourably than others, as all dogs were the Government to make the changes workable. banned from the cafe,´ thus there would have been no 416 L. Delany & J. E. Moody discrimination and the DDA would be redundant. To to make reasonable adjustments, before they incur the render the DDA effective, the comparators must be costs of litigation. Already in Holmes v. Whittingham ‘others’ without dogs. The reason, (being accompan- & Porter Ltd35, referred to earlier in connection with ied by a dog) for being refused access to refreshments the issue of medical evidence, an Employment Tri- in the cafe,´ would not apply to ‘others’ without dogs, bunal had stated that one of the reasons why the ap- yet clearly the presence of a guide dog relates to the plicant would win his case was that his employers had blind person’s disability. failed to consider the adjustments that could have been The preferable approach for Tribunals to now take made in his working conditions before they dismissed in light of the Court of Appeal’s decision is to ask: him on account of his epilepsy. Now the Court of Ap- peal has reinforced this approach. (1) Was the applicant dismissed for a reason relat- Secondly there is some evidence that firms are gen- ing to his or her disability? erally becoming more aware of the requirement to (2) If yes, did the respondents treat him or her less make reasonable adjustments, and prepared to comply. favourably than they would treat others to whom When we informally asked a selection of firms about that reason did not apply? their policy on employing people with epilepsy, 42% implicitly or explicitly indicated that they were pre- Therefore it would seem that it is relatively easy for an pared to make reasonable adjustments. applicant to prove the issue of less favourable treat- Very few of the employers asked had looked at the ment. However, in addition to this, there is a fur- pre-employment stage with a view to making reason- ther and more difficult obstacle to overcome. Sec- able adjustments. Only 8% specifically confirmed that tion 5(1)(b) states that such treatment is only discrim- they would make reasonable adjustments at the inter- inatory if the employer cannot show that it is justified. view stage, leading to the possibility that applicants If the employer justifies his or her actions then clearly with epilepsy might find themselves at a disadvan- the applicant will lose his or her case. This issue will tage at an early stage in the recruitment process. How- be discussed in more detail once we have considered ever, it must be acknowledged that this state of affairs discrimination through a failure to make reasonable threatens applicants with epilepsy less than applicants adjustments. with other disabilities, for there is often no need for ad- justments at the interview stage for an applicant with epilepsy. That is not to say that there can never be a re- Reasonable adjustments quirement for such adjustments, as highlighted in the case of Ridout v. TC Group36 which we discussed in Section 5(2) of the DDA states that employers fur- connection with recruitment. ther discriminate against a disabled person if they fail It is imperative, in our opinion, that in appropriate to make reasonable adjustments to the arrangements cases, the employer and the applicant should com- and the physical features of the workplace, thus leav- municate immediately after the applicant has been ing disabled people at a substantial disadvantage com- short-listed for interview, with both parties requesting pared with others. An inexhaustive list of which ad- and offering information, thereby averting the poten- justments can reasonably be made is set out in Sec- tial danger of the employer lacking knowledge of the tion 6(3), although Section 6(4) insists that the finan- epilepsy, and consequently failing to make any reason- cial and practical implications for the employer of im- able adjustments at the interview stage. plementing such reasonable adjustments ought to be A further advantage of making enquiries at an early considered, thereby creating a balance between the in- stage is that employers may be put at ease with regard terests of the employees and employers. to the reasonable adjustments which must be under- Statistics on the various causes of action brought be- taken, in order to accommodate the individual during fore the Employment Tribunals since the DDA was in- the course of his or her potential employment, thus dis- troduced, show that a failure to make reasonable ad- placing any misconceptions they may have previously justments was the second most common reason for held. Both parties will know what is expected of them commencing a case. Twenty-five percent of cases were and there will not be any surprises mid-employment. brought because of an alleged failure to make reason- Our enquiries highlighted that very few employers able adjustments34. consulted the individual applicants themselves about However, it is submitted that this figure will eventu- the reasonable adjustments which could be made ei- ally fall for two reasons. Firstly because the Court of ther before or during their employment. Only 13% Appeal in Clark highlighted the necessity for employ- consulted applicants during the recruitment process, ers of carrying out any reasonable adjustments before yet consultation with applicants is essential for they they could validly argue justification, there may now are likely to have the best understanding of their be an increase in the number of employers prepared epilepsy. For example, questions could be asked with Epilepsy, employment and the Disability Discrimination Act 417 a view to assessing the applicants’ understanding The case of Jordan v. J. H. Haskins & Sons Ltd40 and management of their epilepsy, their compliance will serve as an illustration. In that case an employee with any medication, the degree of control over their was dismissed by reason of his occasional epileptic epilepsy and any problems they themselves foresee seizures in the workplace, which were said to alarm vis-a-vis` their potential employment, although the em- his colleagues. The factors which the Employment Tri- ployer would be wary of the fact that applicants may bunal held to be of importance were that the employers hide the true extent of their epilepsy either through had not followed the Code of Practice by, firstly hav- fear of not securing employment or through embar- ing discussions with the employee himself about what rassment37. the real effects of the disability might be or what might Consultation would also have the advantage of dis- help, and secondly by making use of available exper- couraging employers from viewing applicants with tise about the problem, particularly from the kind of epilepsy en bloc. Each case, and in particular the in- freely available documentation produced by the em- dividual’s ability to perform his or her duties, should ployee. Had staff been given sufficient information be judged on its own merits, something which is at about their colleague’s epilepsy, they would have felt present done by only 16% of our employer respon- more at ease. The failure of the employers to educate dents. When it comes to assessing the potential ef- themselves and their staff about epilepsy fatally under- fects of a disability on a person’s functional capacity, mined their justification defence. it is wholly insufficient to attach labels to the different The large number of cases which have been remitted forms of a particular disability. This is particularly true to the Employment Tribunals from the Employment of epilepsy, where some of the employers we ques- Appeal Tribunals on the issue of justification, suggests tioned were still using what is now considered to be that the Employment Tribunals are failing to properly out-of-date terminology such as ‘petit mal’ and ‘grand consider justification in sufficient detail to the disad- mal’, with one employer going so far as to state that vantage of both employees and employers. they were unaware that there were different forms of epilepsy. The effects of a disability must be considered as opposed to the actual disability itself as every dis- Remedies ability varies according to its severity, its effects and its treatment. To fully understand the implications of a particular person’s epilepsy for a particular work envi- Section 8 of the DDA outlines the three remedies ronment or job, occupational health expertise may be available to a successful applicant, and each will be needed. Occupational health advice should be widely analysed in turn. available to job applicants, employees and employers Under Section 8(2)(a), a Tribunal can make a dec- and the Government must play its part in improving laration, which is usually available where either the access. applicant has not suffered any measurable loss, or a point of principle is involved. A Tribunal may use its Justification declaratory powers to encourage an employer to take positive steps, for example by offering the applicant Both Sections 5(1)(b) and 5(2)(b) of the DDA specif- employment or reinstatement, but the legal effects of 41 ically require employers to prove that their less such declarations are doubtful : unlike recommenda- favourable treatment of their employee, or their fail- tions, they cannot be enforced. ure to make reasonable adjustments is justified. Tribunals may make a recommendation under Sec- When delivering the leading Court of Appeal judge- tion 8(2)(c). These generally urge the employer to take ment in Clark38 Mummery LJ stated: reasonable steps to address shortcomings, within a specified period of time. It however remains a moot As things have turned out, the critical point whether a Tribunal can recommend that an ap- question in this case is that of justification plicant be appointed to the post he or she applied of the treatment. This will also probably for42. Furthermore, in one decision the Employment be the case with many other complaints Tribunal felt itself powerless to order that a reference under the 1995 Act. be written for the applicant by his former employers, When deciding the issue of justification, the Employ- and relied on the hope that the employers would ‘co- ment Tribunal will consider a number of points indi- operate and adopt the spirit of [the] decision’43. vidual to each particular case. Justification has to be In view of the emphasis on encouraging employers material to the circumstances of the case and it must to make reasonable adjustments to accommodate dis- be substantial, meaning ‘not minor’ and having sub- abled employees, it is thought that there will be a shift stance, that is to say, capable of being objectively jus- from the remedy of awarding compensation to that of tified39. making a recommendation. 418 L. Delany & J. E. Moody

Under Section 8(5), if an employer fails to comply Race Relations and Sex Discrimination legislation of with a recommendation, then a Tribunal may either in- the 1970s was established under the DDA. As a result, crease the amount of compensation to be awarded to there is no mechanism for investigating and tackling the applicant where a compensation order had already discrimination within a business or an entire sphere of been made, or make an order for compensation under employment. Nor can aggrieved individuals obtain ad- Section 8(2)(b). vice and legal representation from a central source of By virtue of Section 8(3), an applicant can make a DDA expertise. claim for compensation under any or all of the follow- Legislation creating a Disability Rights Commis- ing three heads of damages. sion to address such issues, is now however before Parliament49. The Commission will be empowered to (a) Actual losses. This covers the period up to the conduct formal investigations which may culminate date of the Tribunal judgement, provided that in non-discrimination notices, demanding compliance the loss is attributable to the discriminatory act. with DDA duties. It will also be able to offer legal ad- vice and representation to potential claimants. In de- (b) Future losses. This will include the future loss ciding whether to help an individual, the Commission of earnings and any fringe benefits the applicant will be expected to consider whether the case raises would have been entitled to. However, the dura- a question of principle, but also whether ‘it is unrea- tion of the future period may be limited by the sonable to expect the applicant to deal with the case Tribunal. unaided’50. (c) Injury to feelings. Section 8(4) states that the We are unable to predict how the Commission will applicant will be entitled to compensation for exercise its discretion and the proportion of claims this, regardless of the success of the claims likely to gain its support. That support is vital in se- made under the previous two heads of damages. curing DDA rights for individuals can no longer be 51 Such awards can differ significantly in size from doubted . case to case. For example at one end of the scale is the case of Buxton v. Equinox Design Ltd44 where an applicant with multiple scle- CONCLUSION rosis was awarded £500. In the middle of the range is Calvert v. Jewelglen Ltd t/a Parkview Understanding of the DDA by the Employment Tri- Nursing Home45 where the Employment Tri- bunals and Courts is steadily increasing, and recent bunal awarded the applicant, who had epilepsy, decisions reflect the spirit and intention of the legisla- £2500 on finding that the applicant was ‘ex- tion. This is particularly so with regard to proving less tremely hurt’ by the ‘demeaning and degrading’ favourable treatment, now that the Court of Appeal treatment he had received. Another case con- has made a binding judgement implementing the over- cerning an applicant with epilepsy (Holmes v. all purpose of the DDA. Although proving a failure to Whittingham46) similarly falls into the middle make reasonable adjustments remains more difficult, a of the range, with an award of £4250. At the new appreciation of an employer’s duty to make such high end of the scale is Mitchell v. Raychem47 adjustments, is, we have argued, likely to emerge. where the applicant who suffered from depres- A number of problems continue to beset the litiga- sion was awarded £15 000 for the injury to his tion process in our view. One is the failure on the part feelings, as a consequence of the treatment he of Tribunals to properly consider the issue of justifi- received from his employers which led to a de- cation at the initial hearing of the case. When the case terioration of his condition. reaches the Employment Appeal Tribunal, it must then be remitted on that point to the Employment Tribunal, A recent survey for the Equal Opportunities Review costing money and time, and prolonging what is al- has shown that compensatory awards by Employment ready a stressful experience for the parties. However, Tribunals to disability discrimination victims, have the Court of Appeal judgement in Clark, referred to soared by 300%. Last year the average award stood earlier, which highlighted the importance of the justi- at £11 500, three times that in 199748. fication defence, may be effecting a positive change. We also find that the declaratory remedy war- rants further consideration. We question whether Tri- A disability rights commission bunals should have the option of awarding a rem- edy which the applicant cannot enforce. Declarations The remedies discussed in the last section are at should be withdrawn, leaving only the two enforce- present available only to individuals. No. statutory en- able remedies of recommendations and compensation forcement agency, equivalent to those set up under the in place. Epilepsy, employment and the Disability Discrimination Act 419

In view of compensation, we note with concern the be done to disseminate information about legal devel- absence of set criteria for calculating awards, which opments. has produced wide discrepancies. Why should one ap- The DDA currently benefits many people with plicant be awarded £500 for injury caused to feelings epilepsy, but wider access to its protection, and an ex- when another receives £15 000? Furthermore, when tension of the employment rights it confers, are ur- computing loss of future earnings, some Tribunals gently needed. If such improvements were accompan- seem groundlessly confident that the applicant will ied by better information, help with claims and occu- have no difficulty in finding a new job within the pational health initiatives, the law would make a gen- year, and arbitrarily limit his or her losses accord- uine difference. ingly. Even the soundest adjudications by Tribunals would not improve access to the protection which the DDA REFERENCES offers to people with epilepsy. The crucial statutory definition of disability must be revised so that it covers 1. DDA, Section 1. all forms of epilepsy. The statutory exemptions should 2. DDA, Section 2. 3. HC Debates, Standing Committee E (Disability Discrimina- be repealed, leaving employers, employees and job ap- tion Bill), column 73 (Mr W. Hague). plicants to focus solely on job requirements and the 4. See, for example,Sanders, J. W. A. S. and O’Donoghue, M. capacity to meet them. F. Epilepsy: getting the diagnosis right. British Medical Jour- nal 1997; 314: 158–159; Scheepers, B., Clough, P. and Pick- We do consider that as regards recruitment, the DDA les, C. The misdiagnosis of epilepsy: findings of a population has tackled the cruder forms of discrimination against study. Seizure 1998; 7: 403–406.; Smith, D., Defalla, B. A. people with epilepsy effectively. Absolute bars on em- and Chadwick, D. W. The misdiagnosis of epilepsy and the ployment and obviously unjustifiable requirements are management of refractory epilepsy in a specialist clinic. Quar- terly Journal of Medicine 1999; 92: 15–23. now clearly unlawful. However, subtler forms of dis- 5. Section 3(2)B; see also 29 Code of Federal Regula- crimination are, practically speaking, still available: tions 1630.2(k). employers are not required to specify job functions, 6. Doyle, B. J. Disability Discrimination. Law and Practice. yet are allowed to ask about a job applicant’s seizures Bristol, Jordan Publishing Limited, 1996: p. 17. 7. See, for example, the case of Calvert v. Jewelglen t/aParkview or the effects of medication, and so have scope for Nursing Home, Case No. 2403989/97, in which the Tribunal prejudiced reactions. The DDA still needs to take on accepted that Mr Calvert’s medication-controlled epilepsy was board the good practice principles which deprive em- a qualifying disability. ployers of opportunities to discriminate. 8. DDA Schedule 1, paragraph 2. 9. Meager, N., Doyle, B., Evans, C. et al. Monitoring the Once the Disability Rights Commission is in place, Disability Discrimination Act (DDA) 1995. Research Report challenging discrimination may become easier. How- RR119. Nottingham, DFEE Publications, 1999: pp. 3 and 18 ever, it remains the case that an accessible occupa- 10. Ibid: pp. 126–127. The Report does mention one case (re- tional health service should underpin the DDA provi- ferred to only as Alexander v. Driving Standards Agency) in which the claimant’s epilepsy was apparently not severe sions, so that all involved may have reliable informa- enough to meet the requirements of the DDA definition. Un- tion on the implications of an individual’s disability fortunately, attempts by us and one of the Report’s authors to for his or her chosen work and vice versa. trace the case in question have so far failed. Undermining the DDA’s effectiveness is the lack of 11. HC Debates, Standing Committee E (Disability Discrimina- tion Bill), column 144 (Mr R. Corbett). easy access to tribunal decisions. Cases are reported 12. Meager, N., Doyle, B.,Evans, C. et al. Monitoring the Disabil- only sporadically and media attention has been lim- ity Discrimination Act (DDA) 1995. Research Report RR119. ited. Developing an insight into how Tribunals are Nottingham, DFEE Publications, 1999: pp. 155–156. applying the DDA is difficult for lawyers, let alone 13. Anton, D. Occupational health specialist—look behind the la- bel. CCH Disability Newsletter. 1999; February, p. 2. potential litigants. It may be recalled that in the case 14. Case No. 1802799/97. of Ridout v. TC Group, the Employment Tribunal 15. Case No. 1800507/97. considered that Mrs Ridout should have warned the 16. Case No. 2201786/97. employers that the lights at the interview venue would 17. These exemptions arise by virtue of Sections 7, 64 and 68 of the DDA. The small business exemption initially covered affect her epilepsy, yet without knowledge of that de- businesses employing fewer than 20 people but was narrowed cision other job applicants will also remain silent in in December 1998 to cover only businesses employing fewer unsuitable interview venues. Similarly, the criticism of than 15 people. the employers in Jordan v. Haskins for failing to pro- 18. Brindle, D. Armed forces resist rights for the disabled. The Guardian. July 15, 1999. vide their staff with information about a colleague’s 19. Unless it is imposed by legislation: Section 59(1) and (2) epilepsy will go unheeded by other firms, in similar DDA. situations, which have not heard of the case. If em- 20. Department for Education and Employment. Code of Practice ployers are to improve their attitudes and practices, for the Elimination of Discrimination in the Field of Employ- ment Against Disabled Persons or Persons Who Have Had a and employees and job applicants are to mount confi- Disability. The Stationery Office. 1996. dent antidiscrimination challenges, more will have to 21. Paragraph 5.20. 420 L. Delany & J. E. Moody

22. For a more detailed discussion of these issues, see De- 34. Employment Tribunals Central Office, Bury St Edmunds, Suf- lany, L. When Does Epilepsy End? A Report for the British folk. Epilepsy Association. Leeds, British Epilepsy Association, 35. Case No. 1802799/97. 1998: pp. 49–50. 36. [1998] IRLR 233. 23. Coles. v Somerset County Council, Case No. 1700779/97 37. Meager, N., Doyle, B., Evans, C. et al. Monitoring the (1997) 601 IDS Brief 10. Disability Discrimination Act (DDA) 1995. Research Report 24. Meager, N., Doyle, B., Evans, C. et al. Monitoring the RR119. Nottingham, DFEE Publications, 1999: p. 178. Disability Discrimination Act (DDA) 1995. Research Report 38. Clark. v TGD Ltd., trading as Novacold. (1999) The RR119. Nottingham, DFEE Publications, 1999: p. 109. Times, April 1. 25. Ibid : p. 212. 39. Jordan. v J H Haskins & Sons Ltd (Case No. 1400462/98). 26. [1998] IRLR 233. 40. Case No. 1400462/98. 27. Meager, N., Doyle, B., Evans, C. et al. Monitoring the 41. Doyle, B. J. Disability Discrimination. Law and Practice. Disability Discrimination Act (DDA) 1995. Research Report Bristol, Jordan Publishing Limited, 1996: p. 235. RR119. Nottingham, DFEE Publications, 1999: p. 173. 42. Ibid : p.237. 28. [1998] IRLR 628. 43. Mitchell. v Raychem Ltd (Case No. 1401705/98). 29. See, for example,Espir, M. and Floyd, M. Epilepsy and recruit- 44. (1999) IRLR 159. ment. In: Epilepsy and Employment(Eds F. Edwards, M. Es- 45. Case No. 2403989/97. pir and J. Oxley). London, Royal Society of Medicine Ser- vices Limited, 1986: pp. 39–45; Employment Commission 46. Case No. 1802799/97. of the International Bureau for Epilepsy. Employing people 47. Case No. 1401705/98. with epilepsy: principles for good practice. Epilepsia 1989; 30: 48. Anonymous. Compensation awards 1998. Equal Opportuni- 411–412. ties Review 1999; 86: 14. 30. [1998] IRLR 420 EAT. 49. Disability Rights Commission Bill 1999. 31. [1998] IRLR 624 EAT. 50. Clause 6(2). 32. .Clark v TGD Ltd, trading as Novacold (1999). The 51. Meager, N., Doyle, B.,Evans, C. et al. Monitoring the Disabil- Times, April 1. ity Discrimination Act (DDA) 1995. Research Report RR119. 33. HC Debates, Vol. 253, column 150. Nottingham, DFEE Publications, 1999: p. 100.