About this factsheet

This factsheet is part of our your rights range. It is written for deaf and hard of hearing people who are in work or looking for work. We use the term 'deaf people' to refer to deaf, deafened and hard of hearing people throughout.

You should read this factsheet if you want to know about the Disability Discrimination Act 1995 (DDA). We will tell you what to do if you think you are not being treated fairly by your employer or trade organisation.

Read this factsheet to find out about the employment parts of the DDA, including:

Disclaimer

This information is not legal advice, and you should not rely on it as such. You should consider taking independent legal advice from a solicitor or other qualified legal adviser. RNID does not accept any liability for any actions or failures to act, which you or anyone else may or may not take on the basis of the information contained in this factsheet.

What is the DDA for?

One of the aims of the DDA is to make sure that deaf people and other disabled people have equal opportunities in employment.

Who has rights under the DDA?

Disabled people have rights under the DDA. A 'disabled person' is defined as someone 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".

For more information on this definition, please see our factsheet "The DDA – what is meant by disability?"

The DDA does not protect persons who are not disabled, except in the case of victimisation.

Example – DDA protection of disabled persons only

An employer offers a disabled person an interview if they meet the minimal selection criteria, but another person (who is not disabled) who also met the minimal criteria does not get an interview. In these circumstances, the non-disabled person cannot complain about discrimination.

Other laws exist to help people who are discriminated against on the grounds of sex (man, woman, transsexual), race, religion or belief, age or sexual orientation. Contact the Equality and Human Rights Commission (EHRC) if you want more information about those laws.

Who is responsible if someone discriminates against me?

Your employer. They are liable (legally responsible) for ensuring that deaf or disabled people who work for them do not experience discrimination. They are also liable for the actions of their employees or others who work in their business. This means the employer is responsible if colleagues discriminate against deaf staff. They can also be responsible for discrimination by other organisations that they have asked to do work on their behalf.

Example – liability (legal responsibility)

If your employer has a contract with a doctor to do their medical assessments and the doctor discriminates against you, then your employer is liable (legally responsible).

What types of employment does the DDA cover?

The DDA also covers situations where someone applies for a job. In some situations, it can also cover what happens after someone has left a job.

Most jobs and occupations are now covered by the DDA. Only service in the armed forces is not covered by the DDA. It does not matter what size the employer is.

The DDA also covers:

Local councillors are also covered by the DDA when they are carrying out their official business, which includes local authorities making 'reasonable adjustments'. The DDA does not apply to political appointments, local authority cabinet posts or committees.

Most volunteers are not covered. You can get more information about volunteers and the DDA from the EHRC.

Do I have to tell an employer about my hearing loss?

No, not if you don't want to. However, if you are specifically asked about your hearing loss – for example, on the application form, or if you need a reasonable adjustment – it is a good idea to tell them. The DDA says that an employer does not have to make a reasonable adjustment if the employer did not know about your disability or could not reasonably be expected to know about your disability.

Also, many employers say that applicants have to be truthful in all parts of the application form. Employers say that if someone does not provide relevant information, then they could use this as a reason for dismissal. This situation has not yet been tested in the employment tribunal and the employer would have to justify this treatment.

What if I become disabled while I'm working or my hearing gets worse?

If you are concerned about carrying on your job, or about difficulties you are having, you should contact your Disability Employment Adviser (DEA) at your local job centre. The DEA:

You could also contact RNID's Employment, Training and Skills Service (ETSS) who can provide information and help. The ETSS Employment Advisers have experience of these situations and can assist you and your employer. Contact RNID's Information Line for more details.

You may also need your employer to make 'reasonable adjustments' to your workplace or job. This could include providing equipment, or time away for you to adjust to your new situation (for example, to learn new skills including lipreading or sign language).

Example – reasonable adjustment (1)

Because of your hearing loss, you want to learn lipreading. However, your local college only offers lipreading classes during working hours. It may be a reasonable adjustment for your employer to allow you time off to attend the classes.

What is discrimination?

According to the DDA, there are four types of discrimination:

1. Direct discrimination

The DDA says that direct discrimination has happened:

"Where an employer treats a disabled person less favourably, on the ground of his/her disability, than it treats or would treat someone who does not have that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person."

Direct discrimination means that the disability itself is the reason for the treatment. It is often based on prejudice. It has two parts:

Example – direct discrimination

A deaf person does not get an interview for a job simply because the employer thinks that person won't be able to communicate with colleagues. This is likely to be direct discrimination.

An employer cannot justify direct discrimination. We tell you more about justification later.

2. Disability-related discrimination

Disability-related discrimination is:

"treating a disabled person less favourably for a reason relating to their disability, than the employer would treat someone that reason does not apply to".

This type of discrimination is broader than direct discrimination. It can apply to situations that do not fall into the definition of direct discrimination.

Example – disability-related discrimination

Anne's employer dismisses her because she takes too much time off. She has to do so for hospital visits connected to her deafness. The employer has a policy to dismiss anyone who takes this much time off. This is not direct discrimination because anyone who took this much time off would be dismissed. However, it may be disability-related discrimination – if Anne had not been deaf, she would not have taken this much time off and would not have been dismissed.

In some circumstances, disability-related discrimination can be justified.

Justification

Justification means that, even though the employer has discriminated against an employee, they were allowed to do so (it was not against the law).

Direct discrimination, harassment and not making reasonable adjustments can never be justified. Only disability-related discrimination can be justified.

The justification, or reason for the discrimination, has to be "material and substantial".
'Material' means that it must be relevant to the individual circumstances in question.
'Substantial' means that the reason for the discrimination must be more than 'minor or trivial'.

Example – justification

If an employer is recruiting for a job that involves answering a voice telephone a lot, then being able to use the telephone is relevant and it could be a substantial reason not to employ a deaf person. However, if this is only a small part of the job, then they would have to make a 'reasonable adjustment' that would allow the deaf person to do the job.

Medical examinations

An employer can ask everyone applying for a job to have a medical examination. They can also ask questions about your disability on the application form. However, they are not allowed to single you out for a medical examination just because you are deaf, unless they can show that your hearing loss genuinely makes it difficult for you to do the job.

3. Failure to make reasonable adjustments

The DDA says that employers have to make 'reasonable adjustments' (changes) to the workplace and to employment arrangements – including recruitment. This part of the DDA means that if

then the employer has to take action. The employer also has to take reasonable steps to prevent the provision, criterion or practice, or the physical feature, from having that effect.

Example – reasonable adjustment (2)

A reasonable adjustment could be any of the following:

What is a reasonable adjustment?

The DDA does not say which adjustments are 'reasonable' and which are not. What is reasonable depends on the circumstances of the particular situation.

The DDA does list some factors that may be relevant to the situation, including:

Example – reasonable adjustments in a private household

A deaf person works as a carer in the houses of service users. The employer does not have to make adjustments to their houses. However, the employer could tell service users about deafness and give tips about communicating with the deaf person.

Employers only have to make reasonable adjustments if they know or ought to know about your disability.

If your employer does not own the office or work premises, but rents them from a landlord, then the landlord cannot unreasonably refuse permission for the premises to be altered to accommodate you – for example, by changing the entry intercom to make it more accessible. However, the landlord may attach reasonable conditions to giving permission, such as returning the premises to the original condition when your employer leaves the premises.

If your employer does not make a reasonable adjustment because the landlord unreasonably refuses permission for the premises to be altered, you could take your employer to the employment tribunal, and either you or your employer could ask the tribunal to make the landlord a party to the case. This means that the landlord would have to go to the tribunal as well.

Reasonable adjustments if you are already working

If you are already working, your employer must make adjustments for you.

Example – potential reasonable adjustments by an employer

You and your employer may be able to get financial help to pay for reasonable adjustments from the Access to Work Scheme.

4. Victimisation

Victimisation is discrimination or harassment of an employee by an employer because the employee has:

The DDA protects both disabled people and non-disabled people.

What is harassment?

Harassment is a form of discrimination. The DDA says that harassment happens:
"where, for a reason relating to someone's disability, a person carries out unwanted conduct. This conduct is either intended to or has the effect of:

It can be one of these two – it doesn't have to be both. When deciding if a disabled person is victim of harassment, that person's feelings are important.

Example – harassment

The colleagues of a profoundly deaf man continue to make jokes about sign language and make mocking gestures. The worker finds this behaviour offensive and upsetting. This is likely to amount to harassment.

An employer cannot justify harassment.

When is discrimination unlawful?

The DDA covers what happens before someone starts a job (for example, in recruitment) as well as what happens while they are employed. In some situations, it can also cover situations that take place after someone has stopped working for a particular employer.

Recruitment and selection

It is unlawful for an employer to discriminate against a disabled person:

Example – unlawful recruitment

An advert says that you must dial a voice telephone to ask for an application pack. This is likely to be unlawful because it is not accessible to deaf people.

Example – unlawful terms of employment

An employer offers a deaf applicant lower pay than he would offer another person who is not deaf. Or the employer says that the probation period has to be longer.

Example – unlawful failure to offer employment

An employer does not offer a job or work placement to a deaf applicant, even though that applicant is the best person for the job.

The DDA says that it is unlawful for employers to publish adverts inviting applications for jobs, training or other benefits if those adverts are discriminatory. The DDA also applies to adverts published by the employer or on its behalf (for example, in a newspaper). If necessary, the EHRC can take legal action to stop these adverts.

During employment

It is unlawful for an employer to discriminate against a disabled employee:

Example – unlawful discrimination regarding opportunities

Example – subjecting a deaf employee to 'any other detriment' (1)

The colleagues of a deaf employee are bullying her. Nothing is done about it. This bullying makes her ill, forcing her to resign. This scenario is called 'constructive dismissal' and is likely to fall under 'any other detriment'.

After employment has ended

If you have stopped working for a particular employer, the DDA says that it will still be unlawful for your former employer to:

You would have to show that the discrimination or harassment arises from the previous employment and is closely connected with it.

Example – discrimination after employment

Dave is hard of hearing and used to work for Company X as a sales manager. He asks his previous employer for a reference. In the reference, the employer is negative about his deafness. This is likely to be unlawful discrimination.

The duty to make reasonable adjustments can also apply to post-employment situations.

Example – reasonable adjustment after employment

Dave's previous employer turns down his request for a reference. When Dave wants to discuss this with the previous employer, the employer is likely to have to provide communication support.

How can Access to Work help?

Employers may be able to get financial help to pay for reasonable adjustments from the Access to Work Scheme. These can include communication support for job interviews. You or your employer should get in touch with an Access to Work business centre as soon as possible. You can find the address of the centre nearest to you by searching the Jobcentre Plus website.

For more information about Access to Work, see our factsheet "Deaf or hard of hearing and in work or looking for work?"

What else is covered by the DDA?

The DDA also covers the following areas:

Trade organisations

The DDA also covers 'trade organisations'. These include organisations such as trade unions, professional organisations and employers' associations. Trade organisations cannot discriminate against deaf or disabled people:

Once someone has become a member, the association is not allowed to discriminate:

Trade organisations also have to make reasonable adjustments for their members. For example, they might provide an induction loop in a meeting room and check if any member needs communication support, such as a lipspeaker or BSL/English interpreter.

Practical work experience – work placements

The DDA now covers work experience that someone does as part of their vocational training, such as an NVQ in plumbing.
The DDA says that the placement provider (the person who provides the work placement to someone they do not employ) cannot discriminate:

Example – unlawful terms of placement

A company offers students two-month placements. But they offer a deaf student a two-week placement because the company thinks that the deaf student will be unable to cope with two months. This is likely to be unlawful.

Example – unlawful ending of placement

A deaf student has to take a morning off to go to an audiology clinic for new hearing aids. The placement provider terminates the placement because of the time off. This is likely to be unlawful.

Example – unlawful refusal of work placement

A deaf student is refused a work placement in a nursing home because the provider believes that the deaf student is not able to communicate with others. This is likely to be unlawful.

Example – subjecting a deaf employee to 'any other detriment' (2)

A website company offers work placements. People on placements do a range of things, including research and testing. Andy is deaf and uses BSL and is given only photocopying to do on his placement. This is because the supervisor does not think 'he can do anything else'. This would be subjecting a disabled person to a detriment and is likely to be unlawful.
The placement provider has to make the reasonable adjustments. The college or training provider is covered by the education provisions (Part 4 DDA).

Employment services

Employment services include vocational guidance, vocational training or other services that help someone get into employment or stay in a job. They also include services to help set someone up as self-employed. Organisations that help you find work, such as Jobcentre Plus, are examples of employment services. Employment services are covered by the DDA.

The DDA says that a person or organisation providing employment services is not allowed to discriminate by:

'Discriminate' here has a different meaning to the rest of the employment part of the DDA. This is because employment services are covered by a different part of the DDA. Please see our factsheet "The DDA – a guide for deaf people" for more information.

If you need to take legal action against someone providing employment services, you have to take a case to the Employment Tribunal, not to a court.

I think I've been discriminated against – what should I do now?

There are several things you can do, including taking a case to the Employment Tribunal. The tribunal can award you compensation and make recommendations about how the employer should act in the future.

Employment Tribunal – important information

If you want to take a case to the Employment Tribunal, you have to do so within three months of the date when the discrimination happened.

It is very important that you write down everything that has happened, including dates and times, and also keep all the papers – for example, copies of letters, emails or faxes that you have sent to your employer.

Step 1: talk to your employer

You should first talk to your manager about the issue. If this does not work, try speaking to your personnel department or use your internal complaints or grievance system.

The law says that, in most situations, you have to use a grievance procedure before you can take a case to the Employment Tribunal. This requirement applies to most disability discrimination situations. You can get more information about the rules on grievance procedures from the Advisory, Conciliation and Arbitration Service (ACAS).

Step 2: send a DDA questionnaire

If you still can't solve the problem, or you don't want to talk to your manager about it, you can send your employer a DDA questionnaire (DL56) and ask your employer specific questions. The replies you get will help you decide whether or not you have been discriminated against. You don't always have to use this, but it is useful. You can get copies of the questionnaire from the EHRC, Jobcentre Plus or CAB. The questionnaire must be submitted within three months of when the discrimination happens. If you do not have time to send the questionnaire to your employer before applying to a tribunal, you can do it later provided it is within 21 days of applying to the tribunal.

Step 3: take your claim to the tribunal

If you aren't happy with the reply, or you don't get a reply from your employer, you can send an application (form ET1) to the Employment Tribunal Service, giving details of your complaint. You can get this form from Jobcentre Plus or the tribunal. You must do this within 3 months of when the discrimination happens. This would be the date when, for example, you were dismissed or not offered a job. If there were a number of discriminatory acts, such as harassment over a number of months, then the last instance of this must be within the three-month period.

If you go over this time limit, you may not be able to start your case. However, the tribunal will occasionally hear an application after three months of discrimination taking place, if it chooses.

Once the application has been submitted, your employer will be asked to provide a defence or response. A copy of the ET1 is also sent to ACAS. ACAS will try to settle the case before the tribunal hearing. If a settlement is agreed, the tribunal process ends provided the people involved keep to the agreement.

You may need to have used this grievance procedure before you can take a case to the tribunal. If you are close to the end of the three-month period, you could start proceedings anyway.

Step 4: tribunal hearing

If there is no settlement, the case goes to a tribunal hearing. The tribunal is a service provider and so has to make reasonable adjustments to enable you to use its services. You should tell the Employment Tribunal if you need communication support, for example, if you want a BSL/English interpreter or a speech-to-text reporter. The tribunal has to pay for these reasonable adjustments. You can get more information about these duties in our factsheet "The DDA – a guide for deaf people".

If the tribunal agrees that you have been discriminated against, it can:

Step 5: Employment Appeal Tribunal

If you think that the tribunal has applied the law wrongly you may take your case to the Employment Appeal Tribunal.

Information and advice

You do not need legal representation at a Tribunal, but it is a good idea to seek legal help. You can ask for help at your union, local Citizens Advice Bureau (CAB), a law centre or a solicitor. Some of this help is free, some not.

Where can I get further information?

Citizens Advice Bureau (CAB)

Community Legal Advice

The Equality and Human Rights Commission (EHRC)

ACAS

The Disability Law Service (DLS)

Law centres

Jobcentre Plus

Directgov

Further information from RNID

RNID Employment, Training and Skills Service (ETSS)

ETSS Employment Advisers give deaf and hard of hearing people information, advice, guidance and support to help them gain employment or training, or both, or to improve their promotion prospects at work. Contact the RNID Information Line to find out more.

RNID Information Line

The RNID Information Line offers a wide range of information on many aspects of deafness and hearing loss. You can contact us for further copies of this factsheet and our full range of information factsheets and leaflets.
19-23 Featherstone Street, London EC1Y 8SL
Telephone: 0808 808 0123
Textphone: 0808 808 9000
Fax: 020 7296 8199
SMS: 0780 0000 360(costs vary depending on your network)
Email: informationline@rnid.org.uk