Epilepsy, Employment and the Disability Discrimination Act

View metadata, citation and similar papers at core.ac.uk brought to you by CORE provided by Elsevier - Publisher Connector 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 themselves 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.

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