1. New provisions of the Disability Discrimination Act

2. Health and safety at corporate events

1. Health and safety at corporate events

Introduction

The Disability Discrimination Act 1995 (DDA 1995) brought in many rights for disabled people in terms of challenging the discrimination they faced in employment, access to services, transport and, to some extent, education. These rights have subsequently been extended by several measures, including the Special Educational Needs and Disability Act 2001, which amended the DDA 1995 with regard to the provision of some educational activities.

Unfortunately, there are currently two Acts of a similar name – the DDA 1995 and the DDA 2005. However, whilst this may cause short-term confusion, when the provisions of the 2005 Act come fully into force, the legislation will simply be known as the DDA.

The DDA 2005

The 2005 Act addresses a number of issues that were omitted from the DDA 1995 or which had proved to be insufficient, unenforceable, or had not been brought fully into effect. For example, under the DDA 1995, disabled people were not protected by civil rights legislation with regard to bodies exercising what are referred ro as ‘public functions’. These included, for example, powers of arrest and other activities that are usually only conducted by public sector bodies. As a major employer and the provider of key public services, the public sector was considered to play a vital role in creating and promoting equality for disabled people in the way it conducts its activities, and the 2005 Act addresses this.

The 2005 Act also covers several areas that impinge on the everyday lives of disabled people. It extends civil rights in areas of the provision of transport services, letting of premises, the responsibilities and duties of public authorities, membership of private clubs, and the rights of disabled councillors. It also broadens the definition of disability contained in the DDA 1995 to provide protection for a broader range of people.

Some minor changes brought about by the 2005 Act came into affect in December 2005, with the more major changes coming into effect in December this year. This article describes some of the changes already in force and some of the important changes due in December.

Definition of disability

Since December 2005, the definition of disability in the 1995 Act has been extended to include people with progressive conditions from the point of diagnosis, rather than the point when the condition produced a noticeable effect on their ability to carry out normal daily activities. This will now offer protection to people in the period between diagnosis and effect, a time during which they were not previously covered by the DDA 1995 as it originally stood.

Also, since December 2005, a disabled person now need only demonstrate that their disability has an effect on their ability to undertake normal daily activities – not that it is a “clinically well recognised” condition, as was the case under the DDA 1995. However, the claim does have to be supported by medical evidence to show there is an effect.
All changes with regard to the definitions of a disability came into effect in December 2005, and there are now new areas to be implemented in December this year.

Public Functions

Many of the functions carried out by a public authority appear as being very similar to the services they provide. However, under the DDA 1995 there were a number of areas of public sector activity where it was unclear as to whether the law would view them as a ‘service’ or a ‘public function’. These included, for example, the provision and management of a public footpath.

The 2005 Act has addressed this by extending Part 3 (Service Provider) of the DDA 1995 to also outlaw discrimination in the exercise of a public function in the same way the 1995 Act does in the provision of services. When it came fully into force in December last year it will ensure that the rights of disable people, and the duties owed to them by public authorities, will be broadly similar – regardless of the technicalities of whether a delivery constitutes a service or a public function.

From December 2006, the DDA will be extended to require public authorities to have regard to the need to:

By December 2006, a two-part ‘Public Sector Duty on Discrimination’ (PSD) came into effect. The first part was a general duty to eliminate unlawful discrimination against disabled people. This can be done by identifying the areas that are likely to have the greatest impact on improving opportunities for disabled people, and acting on them.

The second is a duty to promote and monitor equality of opportunity. This can be done by instigating and promoting procedures and action plans that will help the public body to progress towards greater equality for disabled people in the work they do, and to ensure that the PSD becomes an active, outcome-based development rather than simply becoming a form-filling, process-driven activity.

Private Clubs

The 1995 Act did not cover private clubs in so far as their dealings with their members or guests.

The 2005 Act addresses this and places a duty on larger private clubs of more than 25 members not to discriminate, in specified circumstances, against a disabled member or prospective member, an associate or guest.

Since December 2005, it has been unlawful for a larger club to treat a disabled member or associate less favourably than a non-disabled member or associate in a number of ways, including, for example, the way they offer access to the service they do or the facility they use, by reusing or deliberately not providing access to a benefit, facility or service, and/or by depriving or varying the terms of membership or association with the club for a disabled person.

From December 2006, the new duties will also extend to making reasonable adjustments, in the same manner as is currently in effect for service providers under Part 3 of the DDA 1995. The duties as with the 1995 Act are ‘anticipatory,’ owed to disabled people generally, and the factors that govern reasonableness in any given situation will be the same as those that apply to service providers.

Councillors

Since December 2005, it has been unlawful for a local authority to discriminate against a disabled councillor, and since that time they have also been required to make reasonable adjustments to ensure that a disabled councillor has the same opportunity as a non-disabled councillor to undertake their activities.

The duty to make reasonable adjustments is similar to that in Part 2 (employment) of the DDA 1995, which covers employees and prospective employees.

Letting of premises

The 2005 Act extends some of the significant duties already contained in the DDA 1995, and which came into effect in December 1996.

The 2005 Act extends the provision of the 1995 Act to require landlords and managers to make adjustments to their practices, policies and procedures when letting or managing property, or to provide, if requested, auxiliary aids or services.

The new duties on landlords also include an obligation to change letting terms where reasonable, perhaps to allow, for example, a disabled tenant to make minor alterations to enhance their usage of the property, even if it is not permitted by the terms of the lease.

Under the 1995 Act, there was no duty to make alterations to the physical features of either the let premises or the common parts, and that is still the case with the 2005 Act. However, from December 2006, anyone who lets or manages rented premises, called in the 2005 Act the “controller of premises”, should if requested by a disabled person, take reasonable steps to provide an auxiliary aid or service if it would assist a disabled tenant in enjoying the premises or any associated benefit or facility.

As with the other parts of the DDA, reasonableness will depend on all the circumstances of a particular instance, and will include, for example, the nature of the letting (i.e. type and length), the size and resources (including finance) of the controller, the effectiveness and practicability of any alterations, and the amount of disruption caused.

2. Managing Health and Safety Risks at Corporate Events

Corporate entertainment days are an essential part of the calendar in many organisations. When planning such events there are a number of key areas of legislation that need to be considered:

Additionally under section 2 an employer has a responsibility to ensure the health, safety and welfare of employees as far as reasonably practicable and under Section 3 of the Act, ensure that others are not put at risk or harmed by their activities. The definition of others covers a wide spectrum of the population and includes visitors, members, of the public, neighbours, and contractors. Essentially corporate events such as family days provided and paid for by the employer can be considered to fall under the scope of company activities.

The example of a family entertainment day will be used to demonstrate how an organisation can ensure that they achieve legal compliance as a minimum and ensure a safe enjoyable event. Usually held by organisations on an annual basis to thank employees for their efforts, family days often take place on the organisation’s premises.

For the purposes of demonstrating what is reasonably practicable in terms of ensuring a safe family entertainment day, the following scenario will be examined: A company family day to be held on company premises for employees and their families totalling 350 people. The premises are based on a business park and they have their own grounds with a lake. Food and drink are provided and there is a bouncy castle and an evening dance held in the marquee.

Under Regulation 3 of the management of Health and Safety at Work Regulations 1992 there is a requirement to carry out a risk assessment of the proposed event to identify hazards and risks that may arise. Regulation 4 of the Regulations requires employers to apply the principles of prevention, in other words put in measures to control the risks.

Pre-event and post-event activities could include work at height; lifting operations; the use of hazardous substances etc for which specific assessments would normally be required under:

These assessments would need to be carried out by the people carrying out the work. Both employer and appointed contractors will need to ensure that appropriate information on risks is communicated to each other in order to ensure that their obligations are fulfilled under Section 3 of the Health and Safety at Work Act.

Overall the employer should ensure that appropriate controls are in place to prevent injury or harm arising as a result of the activities prior to, during and post event. This will include ensuring adequate first aid and medical assistance for the event and also require appropriate liaison with the emergency services for cover and attendance where appropriate.

Key points in ensuring a safe event therefore include: