Welcome to our new disability news update……remember to keep coming back each month for a regular review of all things Inclusion, OT, DDA and disability related!!

Firstly welcome to the new member of the Inclusion family – Ruby Mia Box who was born on 19th Dec 2007. A perfect early christmas present, although a Wii might have been less tiring and easier to keep clean!

Inclusion are proud to be working with and on behalf of the following clients this January:

• Brentwood council auditing Kings George’s Playing Fields (DDA)
• KCC Occupational Therapy Department
• Argent Rehabilitation (OT work)
• Kynixa (OT work)
• Astracare UK LTD (DDA)
• AIG Medical & Rehab (OT)
• Institute Of Islamii Studies (Ergonomic VR assessment)
• IMT Gallery (Image Music Text Galllery)

General news…….
ID cards for disabled people

People with hidden disabilities in Nottinghamshire are being offered identity cards to make it easier for them to access facilities designed for disabled people. Terry Gallagher, a Nottinghamshire resident, has a number of hidden disabilities but does not use a wheelchair, and he found he was often challenged when he tried to use an accessible WC. His experiences inspired a pilot scheme using disability identity cards. This has been such a success that it will now be rolled out across the whole of the county.

Councillor Alan Rhodes, from Nottinghamshire County Council, said: ‘We are pleased that the pilot scheme is working so well and we hope it will continue to help disabled people who previously suffered the indignity of explaining their disability in public.’

Visit the BBC’s website for further details http://news.bbc.co.uk/1/hi/england/nottinghamshire/7153330.stm

Discrimination case victory for man with disfigurement

A nightclub in Belfast, Northern Ireland, has been ordered to pay £2,500 in a disability discrimination case settlement. Raymond Crowe, who has a facial disfigurement, was asked to leave Thompsons (formerly Thompsons Garage) nightclub in Belfast shortly after he paid an entrance fee. When he asked why he had to leave, he was advised it was because of the way he looked. His friends were told that they could stay.

Anne McKernan, Casework Director for the Equality Commission for Northern Ireland said: ‘There is no place for such instances of discrimination in our society and every effort must be made to challenge such treatment when it occurs. We hope by highlighting these cases at this time that all businesses … will ensure their practices and procedures are fit to allow all our citizens in Northern Ireland to participate and enjoy fully the range of goods, services and facilities on offer.’

Read about the case in more detail on the Workplace Law Network website www.workplacelaw.net/news/display/id/13182

Appeal upheld in reasonable adjustment case

The Environment Agency (EA) has successfully appealed a disability discrimination case brought against them by a former employee. After working part-time for the EA for four years, a back injury caused Ms Rowan to have to undergo surgery, which was followed by a long-term sickness absence from work. After returning to work, Rowan moved house, which resulted in an increase in her commute by 50 miles. Because the journey was aggravating her back problem, she asked to work from home, but her request was refused because the EA said it would not be appropriate for her to do so.

The organisation then began a capability procedure against Rowan, examining her performance. Soon after this, she resigned, complaining to an employment tribunal of constructive dismissal and disability discrimination. Both claims were upheld, the latter principally being based on their refusal to allow her to work from home for a trial period. However, the EA appealed successfully, saying that a trial period cannot be used as a reasonable adjustment. The employment tribunal said that a trial period is a way of determining whether a future adjustment would be effective, but in itself is very difficult to see as a reasonable adjustment.

This case has highlighted that it is a good idea for employers in a similar situation to initiate a trial period to establish whether a change is indeed a reasonable adjustment.

Read about this case on Workplace Law Network’s website www.workplacelaw.net/news/display/id/13291

Case law on landlord and tenant issues

Two solicitors from Russell-Cooke LLP have put together a document called ‘Possession Claims and Disability – What does the Future Hold?’ that looks at recent DDA case law on landlord and tenant issues. The document highlights that although the legal cases have helped to define what constitutes disability discrimination, disparities between the outcomes of different cases have led to a certain amount of confusion.

The document can be viewed on Russell-Cooke Solicitors’ website www.russell-cooke.co.uk/downloads/Contentious_Property_Article_October_2007.pdf

Recurring conditions and the DDA

In a landmark case, the Court of Appeal has overruled an appeal by an Employment Appeals Tribunal (EAT) concerning events that took place after the tribunal hearing. In 2005, Elizabeth McDougall – who had a history of mental health problems – was offered a job at Richmond Adult Community College pending the results of a medical examination. The job offer was then withdrawn when the occupational health report deemed her unfit for work. She then lodged a complaint of disability discrimination, following which she had a medical relapse.

The DDA states that for a person to be classified as disabled under the legislation, he or she must have a ‘physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day to day activities’. If the impairment has ceased, then the person is not normally classed as disabled. However, if the impairment is ‘likely to occur’, then he or she probably would still be disabled for the purposes of the DDA, and would therefore be covered by the legislation. In McDougall’s case, the Employment Tribunal ruled that at the time the college withdrew its job offer, she would not have been seen as disabled under the DDA.

The EAT reversed this ruling by arguing that because she had since suffered a relapse, she would be covered by the legislation, and therefore disability discrimination could have taken place. The EAT said: ‘In determining whether or not a condition is likely to recur for the purposes of the assessment of disability under the 1995 Act, it is relevant to consider not only those matters extant at the date the tort was committed, but those occurring up to the date of the hearing.’

The Court of Appeal, however, rejected this ruling, saying that is it not permissible to take into account events that occurred after the time of alleged discrimination. When the college withdrew the job offer, it was thought that the impairment was unlikely to reoccur, so McDougall was therefore not classed as being disabled at this point in time. If, however, the alleged discriminatory act had taken place a few weeks later, she might have been able to claim disability discrimination.

The Workplace Law Network website covers this case in more detail www.workplacelaw.net/news/display/id/13453

Inclusion are based around London, Kent, Surrey, Sussex and cover the whole of the south of the UK. We also cover up to the midlands and over towards the south west of the country – please contact us for further details or for free support and advice around any DDA or Occupational Therapy issues.