[The Gut Trust]

The Disability Discrimination Act 1995 (DDA) makes it unlawful to discriminate against disabled people in relation to employment and in the provision of goods, facilities and services. This Act can help people with Irritable Bowel Syndrome get a fair deal from their employer.

A person is classified as disabled under the DDA if they have 'A physical or mental impairment which has a substantial and long-term adverse effect on his/her capability to carry out normal day-to-day activities'. The precise definition of the terms 'impairment', 'substantial' and 'adverse' are detailed further below but it is the case that in a lot of cases IBS could be classified as a disability, and in that case employers have obligations.

A physical impairment is generally considered to cover such conditions as being in chronic pain (such as serious abdominal pain which is a common symptom of IBS).

A mental impairment is considered to include those resulting from or consisting of a clinically recognised illness such as depression which again can be an associated problem for IBS sufferers.

The words "long term" have been defined as if the disability has lasted at least 12 months or is likely to last at least 12 months or the rest of the person's life.

A "substantial adverse effect" must be more than minor and must be a limitation going beyond the commonly found differences in ability amongst the general public. An impairment is treated as affecting a person’s ability to carry out normal day to day activities only if it affects one of the following:-

• mobility;
• manual dexterity;
• physical co-ordination;
• continence;
• ability to lift, carry or otherwise move everyday objects;
• speech, hearing or eyesight;
• memory or ability to concentrate, learn or understand; or
• perception of risk or physical danger.

In many cases the effect upon the person's ability to carry out one or more of the activities would be relatively easy to demonstrate, for example mobility. However, the definition can become more difficult when considering other illness such as IBS.

The DDA makes it unlawful for employers to discriminate against someone with a disability for the reasons of that disability when they are seeking employment. Similarly, once they have been employed a person with a disability cannot be discriminated against in relation to training, promotion, transfers etc.

An employer also has to make 'reasonable adjustments' so that the disabled employee is not treated less favourably than other employees. These adjustments may involve allowing for absences or time off for medical treatment, or modifying procedures or equipment. An employer is only expected to make adjustments that are practicable and financially viable however, so for instance a large company might be expected to install an outside ramp so that wheelchair users can access their premises but a small corner newsagent would not be expected to do this.

What can your employer do to make your life with IBS easier? This can include a number of different matters such as:

• Adjust your workload so that long car journeys are avoided
• Locating your desk nearer to the toilet
• Alter your role so that long meetings are not necessary
• Increase the number of toilets provided in the building
• Offer flexi-time to accommodate periods when symptoms are severe (such as first thing in the morning)
• Introduce a system of 'duvet days' so that employees can take time off when symptoms are severe

If you feel you may have a claim of discrimination against your employer you must make a claim within three months of the discriminatory act taking place or within three months of your dismissal. Although you can claim for financial losses such as lost earnings and there is no ceiling on damages, injury to feelings is generally pegged at a maximum of £25,000.

The case will be heard by an employment tribunal and you will have to fund the claim yourself, moreover you will not be able to claim costs even if you win.

Some employers may not have heard of the DDA (ignorance of the law is no excuse) and others might be reluctant to change working practices out of lethargy but the best way to improve your working conditions is to talk to your employer and tell them what you need.

Fergal Dowling, Partner, Irwin Mitchell Solicitors.