What is the Disability Discrimination Act (DDA)?
The Disability Discrimination Act 1995 is an Act of the Parliament of the UK which has now been replaced by the Equality Act 2010, except in Northern Ireland where the Act still applies. This guide contains information which is therefore subject to Northern Ireland only and the disability laws in force there.
What is a disability according to the DDA?
In Northern Ireland, there is no definitive list of what is considered to be a disability. Instead, the law says that disability is: “a substantial restriction in the capacity of the person to carry on a profession, business or occupation in the State or to participate in social or cultural life in the State, by reason of an enduring physical, sensory, mental health or intellectual impairment” – (Disability Act 2005).
An impairment is defined as long-term limitation of a person’s physical, mental or sensory function.
DDA
Usually, discrimination involves treating a person less favourably than somebody else in a similar situation, because of one of nine discriminatory grounds:
- Gender
- Civil status
- Family status
- Sexual orientation
- Religion
- Age (except if a person is under 16)
- Disability
- Race
- Membership of the Traveller community
Disability is one of these nine grounds. This means that if you are treated unfairly or less favourably because of your impairment, you may have experienced discrimination. There are laws in Ireland which make discrimination unlawful. Discrimination can be separated into a number of different categories. This report looks at disability only.
Two of these categories are:
Direct discrimination: when someone is treated less favourably than another person because of their impairment.
Indirect discrimination: where a rule, which appears to be neutral / fair, would actually put a disabled person at a disadvantage on the grounds disability.
The Employment Equality and Equal Status Acts
The Employment Equality Acts 1998 – 2015 protect you from discrimination in employment and vocational training and the Equal Status Act 2000 – 2018 protect you from discrimination in the provision of goods and services.
These Acts make it clear that every person, regardless of their identity (gender, civil status, family status, sexual orientation, religion, age, disability, race or membership of the Traveller community) is to be considered equal. This also means that the Irish government must not make laws that treat some people less favourably than others.
You have the right to equal treatment if you are disabled, regardless of your impairment. This can be a physical disability, intellectual disability or learning disability. It also includes certain mental health issues or particular medical conditions, which are potentially chronic, long-term, debilitating or that get worse over time. If you are treated less favourably because you have a different impairment to another person’s impairment, this can be discrimination too.
Disability Act 2005
Government departments and public bodies must work to improve the quality of life for disabled people
This Act also empowers the Ombudsman to improve access to public services and facilities for disabled people
Access for disabled people
Access refers to access by disabled people to public buildings, and services provided by a public body, information and heritage sites. If you want to complain about access, you must complain directly to the public body concerned.
An Inquiry Officer appointed by the public body will investigate your complaint and decide if the body is complying with the Act.
The public bodies covered by the Disability Act are generally:
- Government departments (for example the Department of Transport, Tourism and Sport)
- local authorities (for example, county councils)
- the Health Service Executive (HSE)
- semi-state bodies (for example Enterprise Ireland, Teagasc, Údarás na Gaeltachta and the Health and Safety Authority)
- most other state organisations
Making a complaint to the Ombudsman under the Disability Act 2005
The Ombudsman deals with all complaints independently and impartially. The service is free to use
However, only people specified in the Disability Act 2005 may complain to the public body concerned (for example the disabled person or their spouse, parent, legal representative or personal advocate).
Equal Status Acts 2000 – 2018
- These Acts outlaw discrimination in providing goods and services
- Specifically, goods and services include professional or trade services; health services; access to accommodation and education; facilities for banking, transport and cultural activities.
Any barrier that prevents a disabled person accessing or using goods and services can amount to discrimination. Barriers may be the lack of disabled toilets on the premises or inadequate disability awareness training of staff.
Employment Equality Acts 1988 – 2015
The Employment Equality Acts 1988 – 2015 (EE Acts) aim to ensure equality in all aspects in the workplace.
The EE Acts cover the following aspects of employment:
- Access to employment. for example to read: who you are, for example, mandatory height restriction which applies equally to men and women, will most likely be harder for women to meet
- Conditions of employment
- Pay
- Training or experience for or in relation to employment
- Promotion or re-grading
- Classification of posts
- Dismissal / termination of employment
- Advertising
The employees covered by the EE Acts are public and private sector workers, full-time and part-time, agency workers (in certain circumstances), self-employed and apprentices. The EE Acts do not cover volunteers.
The EE Acts make indirect discrimination illegal, which is when you’re treated in the same way as other people at work, but it has a worse effect on you because of who you are. Indirect discrimination is only allowed if the employer is able to justify the requirement with a legitimate aim and prove that the way of achieving the aim is necessary and does not go further than necessary. The Acts also cover discrimination by association. This is when a person is treated less favourably because of a connection or a relationship with a person who is part of the one of the nine protected groups. For example, a complainant might be discriminated against on disability grounds for seeking flexible working arrangements in order to assist and support a family member who is disabled.
‘Reasonable accommodation’ under the EE Acts requires all employers to take appropriate measures, where needed, to make sure a disabled person can participate in employment, unless such measures would impose a disproportionate burden on the employer.
Reasonable accommodation is where an employer makes a change to the tasks and structure of a job or makes changes to the workplace environment to ensure a disabled employee is able to do the job to the best of their ability and enjoy equal employment opportunities. The purpose of reasonable accommodation is to remove the barriers to effective participation of disabled people in the workforce. These can be physical barriers and also work patterns. An employer is not required to make reasonable accommodation if the measures would cause a disproportionate burden on the employer. The costs of the measures should be realistic for the business to meet – ‘a nominal cost’.
Some examples of reasonable accommodation:
- Accepting potential alternative ways of accomplishing a task/objective which weren’t considered in the job description.
- Providing company info in appropriate formats and assisting in communication where necessary.
- Assistive Technology (AT) is also a significant part of reasonable accommodation including voice recognition software, ergonomic keyboards and alternative mice. AT is any device or process that assists a disabled person to do something that could otherwise be difficult or impossible for them to do.
- Accessible buildings.
- Creating an inclusive workplace which can be achieved by holding disability awareness training and teamwork building workshops.
The following factors must be considered when deciding what would be a disproportionate burden:
(1) the financial and other costs involved;
(2) the scale and financial resources of the employer’s business;
(3) the possibility of obtaining public funding or other assistance.
The EE Acts do not require an employer to recruit, promote, or retain a person in employment if they are no longer competent and able to undertake the duties attached to the job role.
Public Sector Duty (IHREC 2014 Act)
The Public Sector Duty, a legal requirement, was introduced by the IHREC Act 2014. It means that the public sector now has a duty to place non-discrimination, equality and human rights centre stage in their planning, policy-making, employment, service provision and procurement.
Reasonable Accommodation
In most environments, reasonable accommodations have to be made to remove physical or any other types of barrier – created by policies or attitudes for example – that could make it difficult or impossible for disabled customers to use or access the services or information being provided.
The aim of making the adjustment is to ensure that a disabled person (e.g. someone who may be deaf or visually impaired or have difficulty in walking) can use an organisation’s service to a standard as close as reasonably possible to the standard usually offered to a non-disabled person.
The duty to make changes is anticipatory. The organisation must think in advance about how people who have impairments may be affected in accessing their services and what could be done to remove any barriers.
If an organisation finds there are barriers to access for disabled people, then it has a duty to consider making changes to remove or adjust any barriers to access. It will be up to the organisation to consider if the adjustments are reasonable to make.
If barriers to access are identified and the organisation concerned believes they are not reasonable to remove, alter, avoid or provide the service by an alternative means, then the organisation should make a dated record of the reasoning along with any evidence to support this belief. The evidence could be:
A letter from the Planning officer stating that proposed changes to a listed building are not allowed
A quote from a lift supplier giving details of installation costs.
This information should also include a review date.
An organisation has to do what is reasonable, which will depend on a wide range of factors.
These include but are not limited to:
- Cost
- Disruption caused in making the adjustment
- Resources, other than cost, available
- The types of service being offered
- Time needed to make adjustment.
Adjustments do not have to be made to make the building or service more accessible if it will lead to a breach of any other legal duties. However, this is likely to be in exceptional circumstances and only where the other legal duties are very specific, and the service provider has no other choice.
Making reasonable accommodation falls into three main areas:
- Change the way things are done — the provision, criterion or practice
- Provide assistive technology
- Overcome a physical feature by
- removing the feature, or
- altering it, or
- avoiding it, or
- providing services by alternative methods.
What is seen as reasonable will depend on the type of service being offered, along with the size of the provider, taking into account the nature of the service and resources available to it.
Things to consider are:
- Would the suggested steps be effective in improving accessibility?
- Is it practical for the service provider to take the recommended steps?
- What is the financial cost of the recommendations?
- How much disruption will be caused while making the adjustments?
- What financial resources are available?
- How much has already been spent making improvements to access?
- What other resources (financial or otherwise) are available?
Listed Buildings
The ‘Equality Legislation’ Acts do not override existing legislation such as Planning Acts and the National Monument Acts. However, this does not mean that ‘protected structures’ cannot be altered: many have already been altered numerous times throughout their history. It is important to establish at an early stage what types of notifications, permissions and/or consents are necessary to obtain before undertaking any work.
Saying ‘the building is a protected structure, so we can’t do anything is not enough. Evidence that a particular change is not allowed should be obtained. Alternatives should then be sought to overcome the particular access issue.
Under Section 57 (2) of the Planning and Development Act 2000 the owner or occupier of a protected structure is entitled to ask the planning authority to issue a declaration which provides guidance in identifying works that would, or would not require planning permission.
Building Regulations
Building Regulations 2010 Technical Guidance Document M (TDGM) – Access and Use provide guidance on access and facilities for disabled people in non-domestic buildings and dwellings.
Equality Legislation (DDA), Building Regulations, Other Design Guidance & Accessibility Compliance
Equality Legislation is not about buildings or physical features. It is about not discriminating towards disabled people and if physical features have a disabling effect, then reasonable adjustments need to be made to remove that effect.
The Equality Legislation covers buildings (irrespective of age) and sites. For example, this includes parks, whether used free or in return for payment or as a place of employment. Importantly, they are part of the public realm, which is usually the responsibility of a local authority.
However, the Equality Legislation does not give guidance about design or where to get design guidance when looking to make environments accessible. It cannot therefore indicate whether a building or site complies with the legislation.
Building Regulations apply to new builds and extensions. Building Regulations are lawful and compulsory, whereas deviation from the TDGM is allowed, subject to approval, as this is only guidance. A physical feature designed to meet building regulations or the TDGM is not necessarily Equality Legislation compliant.
Other design guidance such as Building for Everyone: a universal design approach or the European standard, Accessibility and usability of the built environment – Conformity assessment PD CEN/TR 17622:2021 is guidance only. These can used as a benchmark to assess accessibility of the built environment and is seen as complementing TDGM. It exceeds the scope of design features when compared to TDGM. Following this guidance will not mean a building is compliant with the equality legislation in Ireland.
