With amendments to the disability discrimination act 1995 taking effect in October, Lucy Trevelyan examines the implications for law firms, which must comply with the new regime

From October this year, amendments to the Disability Discrimination Act 1995 (DDA) will add extra employment responsibilities to all businesses employing 15 people or fewer and oblige them to make their offices physically accessible to the disabled.

Andrew Brown, an employment partner at City firm Herbert Smith, says the DDA is also being extended beyond employees to other people and professions not previously covered, including several relevant to the legal sector.


'Partners or candidates for partnership will be able to bring claims, as will barristers, pupils, vacation students and candidates for such jobs. It will also cover discrimination by solicitors when giving instructions to barristers.'


The chairwoman of the Group for Solicitors with Disabilities, Sue Maynard Campbell, says smaller law firms - which will have to make 'reasonable adjustments' to their premises and procedures to cater for disabled clients and employees - are going to have to get up to speed pretty quickly.


'If solicitors' practices have good employment conditions in place - such as recruiting in an equal opportunity way, having robust job descriptions, appraisal and supervision systems in place and recruiting according to people's records and qualifications - the likelihood of them falling foul of this legislation is slim.


'However, the problem is these sorts of things are often the last thing firms worry about - they are more concerned about client work and fee-earning.'


Mr Brown says: 'The duty to make reasonable adjustments is the area which tends to cause the most difficulty for employers, as it can involve a wide-ranging consideration of possible adjustments - including investigating the availability of outside funding and advice.'


The duty will be widened to apply to employers' 'provisions, criterions or practices' rather than just 'arrangements', which, he says, will require employers to consider this duty in relation to pretty much everything they do.


'However, the regulations do add the nature and size of the employer's business as a relevant factor in deciding what is reasonable.


'Also, it will no longer be possible to justify a failure to make reasonable adjustments - but this is not that significant as there are few cases where, once an adjustment was held to be reasonable, failure to make it could be justifiable.'


David Ruebain, the joint chairman of the Law Society's health and disability committee, says: 'The framework is meant to strike a balance between the need to end discrimination and address legitimate business concerns, but inevitably there will be issues.


'If you say to a disabled person you can't employ them even if they can do the job, that is clearly unlawful. If they were 90% incapable of doing the job, that is unlikely to be unlawful but there will be cases in the middle, and it will be a question of fact as to what is reasonable in every case.'


Ms Maynard Campbell says the new regulations are unlikely to lead to huge volumes of disability-based discrimination claims being brought before employment tribunals by employees or the courts by clients. However, she warns that employers will need to adopt a more flexible approach to employee requests for variations in normal working conditions, or risk breaching the legislation without realising it.


'People who have a problem with incontinence - one of the day-to-day activities covered by the Act - may, for example, ask to come into work a bit later because travelling in the rush hour is difficult for them. Employers really need to be aware that if someone asks for something like that, it may be a disabled issue.


'The person concerned may not acknowledge they are disabled but if the employer is not prepared to be flexible in a case like this and the employee has to leave, they may go to a solicitor who will say they have a valid claim.


'I am a wheelchair user and, therefore, have no choice about being"out", but many people do not want the label of being disabled. Employers are going to have to be alert to this and be more flexible.'


Ms Maynard Campbell says the new legislation and the ensuing regime is open to abuse - with solicitors potentially adding to such misuse.


'Our profession is to an extent complicit in this abuse. We, as solicitors, are always looking for ways to get business but some solicitors do “ambulance chase” and encourage the abuse. This of course, makes it more difficult for people with genuine cases.'


She adds that many cases are settled - even if the employer believes they have a good case - because they simply do not have the time and energy to deal with it.


Digby Jones, the solicitor director-general of the Confederation of British Industry, says firms should look on the new legislation as a positive not a negative, which could actually help bring in more customers and clients for businesses.


He says: 'If you're seen as a service that is sensitive to the insights of disabled customers, then you will be tapping into an enormous market.


'We haven't got enough skilled people in Britain and employers can't afford to frustrate the skilled people who work for them. In the past, the criticism that employers were only doing things because they had to, not because they wanted to, was right. However, employers are now aware that if they don't tap into that sensitivity, they won't employ the right people, and they won't make money.'


Ms Maynard Campbell says: 'Firms shouldn't look on it as something negative. If you mention that things may need changing for disabled people, alarm bells start going and cash tills start ringing in their eyes. But most adjustments cost nothing or very little, especially compared with the cost of recruiting someone new and training them.'


She adds: 'If you have disabled people on your staff, the quality of your service for disabled clients is going to be better because there will be more empathy and understanding. At the moment, a lot of solicitors are not providing a really high-quality service to disabled clients because they don't have this understanding or the openness to have it.'


Such understanding could prove lucrative. According to figures from the Employers Forum On Disability, at least one in four customers either has a disability or is close to someone who has, and the estimated annual purchasing power of people with disabilities is £40-£50 billion.


Mr Ruebain says that although the measures set to be introduced in October will plug some gaps, others remain that will only be partially filled when the draft Disability Discrimination Bill is implemented.


'The creation of a new public sector duty giving local authorities a positive duty to consider steps they can take to end discrimination is a welcome progression but even if the Bill is announced in its current form, there will still be gaps.'


Mr Brown agrees. He says: 'There still remain problems, particularly with the definition of disability as it applies to progressive conditions and mental illnesses. The Bill will protect sufferers from cancer, HIV and multiple sclerosis from the point of diagnosis, whereas at the moment they are only protected once the condition has an effect on their ability to carry out normal day-to-day activities and the employee can show the effect will become substantial.


'However, those with other types of progressive illnesses will still not be covered until this test is satisfied. People with mental illnesses are also arguably inadequately protected because they often do not fit within the statutory definition of disability. Given that mental illnesses are those more likely to give rise to direct discrimination as a result of prejudice, it is arguable the DDA should be amended to provide better protection in such cases.'


A joint parliamentary committee on the draft Bill has recently recommended that tribunals should be allowed to reinstate disabled employees in disability discrimination cases.


Mr Brown says: 'In disability related cases, the complaint often arises from the failure of an employer to make a reasonable adjustment without which the employee was physically unable to continue working, but there is otherwise no breakdown in the relationship between employer and employee - so disability cases can be particularly suitable for this type of remedy. The government originally accepted this but then did not include it in the draft Bill without explanation.'


He and other specialists in the sector will be watching the progress of the Bill for issues such as these, but it remains to be seen whether the many other solicitors' practices that will be affected by the introduction of the new law will be adequately prepared.



Lucy Trevelyan is a freelance journalist