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The other day, we were planning our line of attack with regards what we are going to spend to rest of our lives doing (when we have finished our protracted holiday lifestyle, which unfortunately will have to end at some point) when Linda discovered a job that sounded pretty good for her.

The only problem being that it was only open to people who “believe themselves to have a disability.”

Hang on. That can’t be right, can it? I went and had a look and, indeed, one had to tick a box to say “I am disabled” before the rest of the application could load.

The reason given for this was that the advertisers wanted to improve the proportion of disabled persons working within the television industry.

I am almost certain that the advertisement is in breach of UK labour law, having studied many of the relevant cases.

Most case law on positive discrimination is based upon gender, for example:

Re Badeck’s Application Case C-158/97 [2000] IRLR 432 ECJ

Measures of positive discrimination should not give an automatic priority to women over equally qualified men. All candidates, irrespective of sex, should be subject to an objective assessment taking account of all personal qualities and strengths. Subject to that condition, it is lawful to adopt a plan aiming to reverse under-representation e.g.

• by providing that a certain percentage of academic service staff should be female,
• by allocating half of training places to women in certain fields,
• by providing that suitably qualified women would be guaranteed an interview in fields in which they were under-represented.

If we substitute “women” for “persons with disability” we can see how only offering a role to a person with disabilities (or only women) would be outside of these rules. Yes, you can say that priority for interview would go to those with disability, however, the most qualified person should be given the job irrespective of gender, race, physical impairment etc etc.

In a meritorious world, it should be irrelevant whether one is male/female, black/white/red or green, old/young or anything else. Employ the best person for the job. Don’t preclude persons from applying based on any of these irrelevant considerations either.

The Disability Discrimination Act 1995 states that:

4. - (1) It is unlawful for an employer to discriminate against a disabled person-
	(a) in the arrangements which he makes for the purpose of determining to whom he should offer employment;
	(b) in the terms on which he offers that person employment; or
	(c) by refusing to offer, or deliberately not offering, him employment

This works both ways - if you decide that you will not offer someone employment because he or she is not disabled, that, too, is unlawful.

Those advertising this role are “deliberately not offering… employment” to those who do not consider themselves to have a disability.

It is situations such as this, unfortunately, which are brought about by having “quotas” for large employers (as small businesses are usually exempt from much discrimination law and regulation) which are unnecessary if employers all follow this basic rule: open applications to all, and only give the job to the best (most qualified) applicant.

If one particular group is under-represented under such a system, this would be not because of any discrimination, but because of other issues outside of the scope of the employer (e.g. cultural or social reasons).

It is not discriminatory to hire the best person without placing any focus on their individual personal background or circumstances. It is discriminatory to only open a job to persons from a certain “sector” of society in order to fill up a quota.

So, is the advertisement in question legal?

It is difficult to say, though I contend that precluding people from applying for a job based on his or her (lack of) disability is unlawful under current English law, through the wording of the DDA 1995.