Employment: Scope - extensions and exceptions

The "Code"
means the 2004 Code of Practice: Employment and Occupation (pdf file on EHRC website).

Section references
are to DDA 1995 as amended, available on the DRC website - 'DDA and related statutes'.

Inclusions:

Employees

The DDA employment provisions apply to employees (unless a specific exception applies). It will often be very clear that a person is employed. Where it is not, the distinction between employment and self-employment can be a difficult one. The courts will not necessarily go along with what the parties call the relationship. There is some very broad guidance on the distinction at http://lawmate.co.uk/?p=16.

In Whittick v British School of Motoring a person who stammers was turned down as a driving instructor, but failed in his DDA case as he was looking to obtain a franchise - he was not an applicant for 'employment'.

Extension beyond employees

As well as employees, the DDA employment provisions or similar provisions also extend to certain other people, most importantly:

contract workers (section 12 # and paras 7.1-7.7 of the Code) - eg staff employed and supplied by an agency, and probably people employed by a service company and supplied to another group company - more on contract workers;
people who contract personally to do any work (section 68(1)), even if they are self-employed;
apprentices (section 68(1));
various people working for the Crown (section 64)
police officers from 1st October 2004 (special set of rules in new section 64A),
certain office or post holders from 1st October 2004 (special set of rules in new sections 4C - 4F) DRC views...
partners and prospective partners from 1st October 2004 (special set of rules in new sections 6A - 6C)
work placements, defined as "practical work experience undertaken for a limited period for the purposes of a person's vocational training" (new sections 14C and 14D)
barristers and their pupils in England and Wales from 1st October 2004 (special set of rules in new sections 7A - 7B)
in Scotland advocates' pupils and, to an extent, advocates from 1st October 2004 (special set of rules in new sections 7C - 7D)
local councillors from 5th December 2005. The duty is subject to limitations, eg failure to be appointed is not covered. The reasonable adjustment duty for councillors does not come into force until 4th December 2006. (Sections 15A-15C, inserted by Disability Discrimination Act 2005) See I am a local councillor - am I covered by the DDA? (link to DRC website)

There are also provisions on occupational pension schemes and provision of insurance - e.g. BUPA - to employees (part 10 of Code)

Former employees

These may be covered by the DDA. As from October 2004, section 16A provides that:

discrimination or harassment is covered if it arises out of and is closely connected to the employment (or other relevant relationship).
a reasonable adjustment duty applies to a provision, criterion or practice applied by the employer to the disabled person in relation to any matter arising out of the employment (or other relevant relationship)

Connection with Great Britain

For direct discrimination, disability-related discrimination and harrassment, the DDA says that the employment must have sufficient connection with Great Britain:

The usual way to come within the DDA is for the employment to be at an establishment in Great Britain (DDA s.4(6), para 3.9 of Code).
The DDA also applies if (a) the work is for the purposes of the business carried on at an establishment of the employer in Great Britain and (b) the employee is ordinarily resident in Great Britain either at the time when he applies for or is offered the employment, or at any time during the course of the employment (s.68(2A)). An example might be a foreign based correspondent of a British newspaper recruited in the UK.
There are special rules to decide when the DDA applies to people employed on a ship, aircraft, hovercraft or oil rig, and to bring in some people who work wholly outside Great Britain (s.68(2)-(4A)).

In Williams v University of Nottingham (2007) at www.employmentappeals.gov.uk/Public/Upload/07_0124ResfhCNRN.doc, the Employment Appeal Tribunal applied to disability discrimination the unfair dismissal test given by the House of Lords in Lawson v Serco Ltd (www.bailii.org/ew/cases/EWCA/Civ/2004/12.html).

Exclusions

Armed forces

The armed forces are excluded from the DDA. The Government insists that members of the armed forces should remain outside the DDA on the grounds that all service personnel need to be combat effective. "Decisions on military health and fitness standards are for the Ministry of Defence and not for Employment Tribunals". The former Disability Rights Commission asked the Government to reconsider this position . The DRC said: "Adequate safeguards can be provided under the DDA to allow operational effectiveness to be maintained, as has been accepted in relation to occupations such as firefighting and the police."

In 2009 the UK government maintained its position by entering a reservation on service in the armed forces in its ratification of the UN Disability Convention - see Annex A of www.officefordisability.gov.uk/docs/wor/uncon/un-memo.pdf. In 2009-2010 the Government has also resisted attempts to amend the Equality Bill to include a measure of protection for disabled people in the armed services.

There is a group of links on the BSA website employment page (www.stammering.org/employment.html) to articles on experiences of people who stammer in the armed forces.

Various exclusions abolished in October 2004

Various jobs which were excluded from the DDA before October 2004 are now covered by the DDA, for example prison officers, fire-fighters, police officers, and offers of partnership.

Volunteers

Many volunteers are not covered by the DDA. Unless European law extends coverage (see below), the main situations where a volunteer falls within the DDA are:

where the person has a legal contract. If the person does, they should fall within the DDA either as an "employee" or as someone who "contracts personally to do work". The contract need not be an employment contract, and need not be for pay. Newham Citizens Advice Bureau v Murray is an example of a case where the EAT considered that the employment tribunal had too easily found a volunteer not to be within the DDA;
a 'work placement', which is defined as "practical work experience undertaken for a limited period for the purposes of a person's vocational training" (DDA sections 14C and 14D);
DDA s.4(1)(a) makes it unlawful for an employer to discriminate in the arrangements which it makes for the purpose of determining to whom it should offer employment. So, for example, the DDA is likely to apply if an organisation uses volunteering as a way of assessing an individual's suitability for particular work there. On the facts, this was held not to apply in X v Mid Sussex Citizens Advice Bureau, where the Employment Appeal Tribunal pointed out that it is only the 'purpose' of the arrangements, not their 'effect' which the legislation looks at.

For situations where the DDA does not apply to volunteers, the former Disability Rights Commission published guidance in 2007: Recruiting developing and retaining disabled volunteers - Guidance for volunteer opportunity providers (pdf, link to volunteering.org.uk). This guidance also discusses further when the DDA can apply to volunteers, in paragraph 6.2.

Does European Union law extend protection?

It has been suggested that under the European Framework Employment Directive, protection against discrimination extends beyond the relatively limited categories of volunteers covered by the wording of the DDA.

However, the Employment Appeal Tribunal (EAT) has so far held that this Directive does not affect the position. In X v Mid Sussex Citizens Advice Bureau (October 2009) the claimant argued that the word 'occupation' in the Directive covers part-time unpaid volunteers whose activities are a sufficiently significant or important part of the "employer's" function. The EAT disagreed, and refused to refer the matter to the European Court of Justice (ECJ). The case is to go to the Court of Appeal.

A tribunal has, however, referred another case Masih v Awaz FM (link to timesonline.co.uk) to the ECJ. The referral has been appealed to the EAT, so it is unclear whether it will proceed.

Role of UN Convention?

The Equality and Human Rights Commission suggests in its 2010 Guide to the UN Convention on Rights of People with Disabilities (link to EHRC website) - see page 16 of pdf version - that the current limitations on coverage of volunteers may be inconsistent with the Convention. More on the UN Convention.

Volunteer Rights Inquiry

Voluntering England is conducting a Volunteer Rights Inquiry (link to volunteering.org.uk). This is a short, focused exploration of the issues and potential solutions around the subject of volunteer rights.

In 2010 the Inquiry has published an interim report, on which it invites views. The Inquiry meet again in early October 2010 to consider the responses of stakeholders to the interim report. In light of the contributions received, the Inquiry members are to further refine their thinking before issuing a final call to action before the end of 2010.

More on proposed changes

Charities etc

There are also certain exceptions relating to disabled charities and to supported employment (section 10 #).

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