ON December 5, a new Disability Discrimination Act comes into force.

Disability discrimination remains a complex area of law. Perhaps the most complex aspect is precisely what constitutes a "disability" for the purposes of the legislation. Being "disabled" in this context does not mean being entitled to Disability Living Allowance, or to a blue parking badge, although people entitled to those are likely to be covered. Someone is disabled for the purposes of the Act if they have a mental or physical impairment that has lasted - or which is expected to last - for at least a year and which has a substantial adverse effect on their ability to carry out normal day-to-day activities.

This definition will be amended in two key areas. The first change relates to people with progressive medical conditions, such as multiple sclerosis, who under the current law are not automatically protected from discrimination. They will be protected only if they can show that, even if their conditions does not give rise to a substantial adverse effect immediately upon diagnosis, that they are likely to do so eventually. On December 5, that will change and all people with cancer, MS and HIV will have full disability discrimination protection from the point of diagnosis. They will therefore be spared the need to provide any evidence as to the likely future effects of their illness.

The second amendment also widens the scope of disability discrimination - this time by removing the requirement that mental impairments have to be clinically well-recognised before they can potentially amount to a disability. Hitherto vague descriptions, such as stress, nervous debility and reactive depression have, on their own, been incapable of amounting to a disability, as they are general terms, rather than specific conditions, such as post traumatic stress disorder or clinical depression.

This particularly contentious change means that employers should think carefully before dismissing the claims of an employee with a stress note claiming to be disabled.

* Stephen Elliott is a solicitor in the employment team of North-East law firm Ward Hadaway. He can be contacted on 0191-204 4000 or by email at stephen.elliott@wardhadaway.com

Published: 29/11/2005