DDA FACTSHEET 12 WHAT YOU CAN DO IF YOU

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DDA Factsheet 12: What you can do if you experience discrimination


This factsheet forms part of a set of RNIB DDA factsheets, all of which are available in alternative formats.


The Disability Discrimination Act (DDA) outlaws discrimination against disabled people in the areas of employment and goods, facilities and services. The DDA is a Government measure intended to reduce discrimination against disabled people. It has been amended to improve its scope a number of times, most significantly by the Special Educational Needs and Disability Act 2001 (which introduced provisions to cover education) and the Disability Discrimination Act (Amendment)(Further and Higher Education) Regulations 2006; the Disability Discrimination Amendment Regulations 2003 (bringing in changes to employment]; and the Disability Discrimination Act 2005 (which covers councillors, private clubs etc). It has separate amendments, with similar effects, in Northern Ireland.


This leaflet describes how you can use the DDA to remedy an incident of discrimination. There are different steps you need to take depending on whether you face discrimination in employment or when obtaining goods, facilities or services. Both areas are covered here.


Will the DDA be able to help me?


In order to pursue a case under the DDA, you will have to work through several steps. You must show that:

  1. Your disability is covered by the DDA.

  2. Those who discriminated against you are covered by the DDA.

  3. You've been discriminated against within the meaning of the DDA.




1. Your disability is covered by the DDA.


The Act gives rights to disabled people – those with a “physical or mental impairment which has a substantial and long term adverse effect on the ability to carry out normal day to day activities”.


From 14 April 2003, if you have been certified as blind or partially sighted by a consultant ophthalmologist, or if you are registered as blind or partially sighted with a local authority, you will automatically be regarded as disabled for the purposes of the act. Most blind and partially sighted people are likely to be "disabled" within the meaning of the Act.


Please see Factsheet 3 on definition of disability for further information.


2. Those who discriminated against you are covered by the DDA.


The vast majority of companies and service providers are covered by the Act, as well as certain forms of transport (excluding most notably ships and ferries), any functions carried out by public authorities, and private clubs, and education providers.


However, there are some important exceptions: the armed forces are excluded from the employment provisions of the Act.


3. You have been discriminated against within the meaning of the DDA.


The following provides an outline of the basic provisions of the Act in terms of employment and goods, facilities and services. For more detailed information, please consult Factsheet 4 on employment and recruitment, Factsheet 5 on access to goods, facilities and services and Factsheet 6 on ‘reasonable adjustments’ in accessing goods, facilities and services.


Definition of discrimination


The definition of ‘discrimination’ varies depending upon whether yours is an employment or education case or a goods, facilities and services, public authority function or private clubs case.



Generally, you must have been treated less favourably due to your disability than someone who does not have that disability. In employment and post-16 education (as well as qualification bodies), there is the additional concept of "direct" discrimination, which is narrow than "less favourable treatment for a reason relating to disability than others who do not have that disability" and which is not capable of being justified


There may also have been a failure to make reasonable adjustments.


Reasonable adjustments


1. Employment cases


There will have been discrimination if your employer has not made ‘reasonable adjustments’ to enable you to access the shortlisting and selection process - in the case of recruitment - or to carry out your work.


For example: An employer might be required to alter the design of an office to make it easier for a visually impaired person to get to and from their work station.


2. Goods, facilities and services cases, public authority functions and private clubs (referred to as service providers)


Service providers also have to make ‘reasonable adjustments’ to enable disabled customers to access their services. [Please see factsheet 6 on ‘reasonable adjustments’ in accessing goods, facilities and services for details].


3. Education providers


Education providers also have to make reasonable adjustments to enable disabled people to access education and associated services. The extent of the duty varies depending on whether you are complaining about pre-16 education or post-16 education. Please see factsheets 10 and 11 for further details.




Justification


Even if you have been discriminated against, you will not be able to succeed in a claim under the DDA if the employer and/or service provider can justify their actions, although this is only applicable in certain situations.


In employment and post-16 education cases, other than those relating to direct discrimination or a failure to make reasonable adjustments, which can't be justified, the reason for the actions must be ‘substantial’ and ‘material’.


In goods, facilities and services, public authority function and private clubs cases, service providers can treat you less favourably where the relevant justification applies and there is a genuine and reasonable belief that it applies – see factsheets 5 and 7 for further details.


What next?


If you believe that you have been discriminated against, and that your case may be covered by the DDA, you will need to decide what you want in order for the problem to be resolved:


For example: Do you want an apology? Some compensation? Or to ensure that the same thing does not happen to you or to other people again?


Depending on what solution to the problem you want, you may wish to try to resolve the matter informally by contacting the other party and telling them what you want.


If you do not wish to resolve the matter informally, or if you do not feel that this has worked, you may wish to take things further.

Before starting formal proceedings, please bear in mind:






The questions procedure


In employment cases, goods facilities services, public authority functions private clubs and premises cases, you can use the questions procedure to obtain information from the employer/service provider etc about your treatment. The questionnaire must be answered within 8 weeks of your sending it, and if it is not, or if the answers are evasive or equivocal, a court or tribunal can draw an adverse inference from this i.e. hold it against the employer/service provider. Copies of the questions procedure are available from the Equality & Human Rights Commission (formerly Disability Rights Commission) website or helpline (www.equalityhumanrights.com ; 08457 622 633)


Options available


1. In a goods, facilities and services, public authority functions, private clubs, or premises case


1.1 Resolving the matter informally


RNIB has produced a standard letter on the DDA which you can use to send to service providers, asking them to resolve your complaint without going to court. This means that you may be able to get a positive result without having to take the case any further.


For example:

Mrs S contacted her local County Court as she wished to obtain information and forms etc to issue a claim. She requested the information be provided to her in an accessible format, which in her case is Braille. The Court said they were unable to provide this service. Mrs S contacted the DDA Legal Service at RNIB who advised her that under part iii of the Disability Discrimination Act, the Courts are a service provider and therefore under an obligation to make their service accessible to disabled people. This included the provision of an ‘auxiliary aid and service’, in providing information in an accessible alternative format to a visually impaired person. Mrs S sent the ‘DDA Standard Letter’ from RNIB, with a covering letter from herself to explain that she needed information sending to her in an accessible format. A few weeks later, Mrs S contacted RNIB again to say that she had received a letter from the Court, to confirm that they would now be sending her all information and forms etc, in her chosen format of Braille.


Mrs R, a visually impaired customer of the high street bank had been requesting monthly statements in audio. The bank said they had no facility by which to produce an audio statement. Mrs R contacted us for advice and an advocacy pack and letter was sent. She duly wrote to the bank and enclosed our letter. She contacted RNIB again to say that the bank has now agreed to produce her monthly statements on audiotape on an individual basis.


1.2 Conciliation


This is a process under which both sides in a dispute will discuss their case with a conciliator in the hope of being able to resolve a problem without the need to resort to court action.


This service is run by the Equality & Human Rights Commission and can be used by contacting their Helpline on 08457 622.


Advantages of conciliation



Disadvantages of conciliation



1.3 Court action


Cases of discrimination under the DDA can be taken to a County Court in England, Wales and Northern Ireland, and to the Sheriff’s Court in Scotland.


The case must be brought within six months of the incident complained of, although if the case has been registered with the EHRC conciliation service this time limit will be extended by two months. The Equalities Commission for Northern Ireland do not have their own conciliation service, however cases going to conciliation will automatically be referred to an independent conciliator in Northern Ireland.


Cases can be dealt with in a small claims track if the amount being claimed in damages is less than a prescribed sum, that is, £5,000 in claims in England and Wales.

By using the small claims track, it is possible to use the Court without a solicitor and there is less financial risk, as the loser will probably not have to pay the other side’s costs, other than the issuing fee for the summons.


If you are successful in your case, the Court may award compensation, a declaration of discrimination and an injunction preventing the service provider from discriminating again.


Advantages of going to Court


Disadvantages of going to Court



1.4 Other means of resolving disputes relating to goods, facilities and services


Ombudsman services


These are free and the option to go to Court is still available [as long as the six month time limit has not expired].


Finance and Insurance Ombudsman – telephone 0845 080 1800



Legal Services Ombudsman – telephone 0161 236 9532 or in Scotland 0131 556 5574



Banking Ombudsman – telephone 020 7404 9944



Building Societies Ombudsman – telephone 020 7931 0044



The Northern Ireland Ombudsman – Telephone 0800 34 34 24


2. In an employment or recruitment case


If you feel that an employer has unlawfully discriminated against you or failed to make a ‘reasonable adjustment’ [see above] then you may wish to take a case to an Employment Tribunal.


You will need to make sure that you comply with the relevant grievance and dispute resolution procedure – see the ACAS website for more details of this – before going to the employment tribunal.


Complaints must be made to the Tribunal within three months of the incident complained of, although this may be extended if the Tribunal thinks it ‘just and equitable’ to do so.



Information is also available from your regional office of the Advisory Conciliation and Arbitration Service [ACAS] or, in Northern Ireland, the Labour Regulations Agency. You will find their telephone numbers in the phone book or local library.


When a formal complaint has been made to an Employment Tribunal the DDA places a duty on ACAS/Labour Relations agency to try to settle the dispute without a Tribunal hearing.


If this is successful the agreement will be recorded in writing and you will be required to discontinue Employment tribunal proceedings in exchange for a sum of money and/or undertakings by an employer to improve their procedures.


If you proceed with your case to a Tribunal hearing, and you are successful, the Tribunal may do the following:



3. Education


Post-16 education cases are brought in the county court, as above in relation to goods facilities and services.


Post-16 cases are brought in the Special Educational Needs and Disability Tribunal or, where relating to admissions, in the Admissions Appeal Panel or, where relating to permanent exclusion, in the Exclusions Panel. Please see factsheets 10 and 11 for further details.





Sources of further assistance


The Law Centres Federation – telephone 020 7387 8570


They can give you the telephone number and address of your local Law Centre for free advice and representation on various areas of law.


Citizen’s Advice Bureau [CAB]


The number of your local CAB will be in the phone book or local library.


RNIB Helpline 0303 123 9999


The Royal National Institute for the Blind [RNIB] also has a Legal Casework Officer and Assistant Legal Officer with specialised knowledge of the DDA.


Equality & Human Rights Commission Helpline – 08457 622 633


Equalities Commission for Northern Ireland – 028 9050 0600


Please note that on 28 September 2007 the Disability Rights Commission closed. However, their website is still available but will be no longer updated.


On 1 October 2007 The Equality and Human Rights Commission [EHRC] replaced the three former equality commissions: the Commission for Racial Equality (CRE), the Disability Rights Commission (DRC) and the Equal Opportunities Commission (EOC). The Equality and Human Rights Commission is a non-departmental public body (NDPB) established under the Equality Act 2006 – accountable for its public funds, but independent of government. The new commission is working to eliminate discrimination, reduce inequality, protect human rights and to build good relations, ensuring that everyone has a fair chance to participate in society.


The EHRC has taken over the function of the former DRC. The EHRC commission deals with disability discrimination as well as discrimination on the grounds of race, gender, age, religion and sexual orientation, as well as providing advice and information on the Human Rights Act. Any references to the DRC should also be read as references to the EHRC after October 2007.



RNIB is committed to achieving comprehensive civil rights for all disabled people. The Disability Discrimination Act, although much improved, does not deliver all these rights. We will continue to campaign for additional legislation, such as a Single Equality Act, and attitudinal change within society to deliver this goal, as well as for the delivery of high quality services for all blind and partially sighted people.


RNIB Helpline 0303 123 9999


Information, support and advice for anyone with a serious sight problem.


This factsheet is not an authoritative statement of the law. Whilst we have made every effort to ensure that the information we have provided is correct, we cannot accept any responsibility or liability.


Registration charity number 226227


RNIB, July 2007




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