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Fourth Standing Committee
on Delegated Legislation
Tuesday 24 June 2003
[Mr. Alan Hurst in the Chair]
Draft Disability Discrimination Act
1995 (Amendment) Regulations 2003
The Parliamentary Under-Secretary of State for Work and Pensions (Maria Eagle): I beg to move
That the Committee has considered the draft Disability Discrimination Act 1995 (Amendment) Regulations 2003.
It is a pleasure to be under your chairmanship, Mr. Hurst. I have not sat on a Committee under you, but I am sure that with the willingness of all concerned it will be smooth, speedy and all those things we wish it to be.
I commend these important, far-reaching draft regulations, which will extend, strengthen and improve civil rights for disabled people. The regulations, which are made under section 2(2) of the European Communities Act 1972, will implement the disability discrimination provisions of the European Community's employment directive. Committee members will be aware that that enables us to re-cast the legislation more substantially than might otherwise have been the case.
The regulations will amend the Disability Discrimination Act 1995 and extend its provisions in the areas of work and vocational training. They will also make some consequential changes to other legislation, such as the Disability Rights Commission Act 1999. It is especially worth drawing the Committee's attention to some of the important changes. The regulations will end the current small-employer exemption in the 1995 Act, which exempts every employer with fewer than 15 staff; they will end almost all the current employment and occupational exclusions in the DDA; they will make it clear that harassment for a reason relating to disability is unlawful; they will provide a clear definition of what conduct constitutes harassment; and they will ensure that treatment that constitutes direct discrimination against a disabled person—for example, if it is motivated by prejudice—can never be justified, whereas the law currently suggests that it can. They will also outlaw discriminatory advertisements.
The provisions follow the recommendations of the disability rights taskforce, which was established in 1997 to advise the Government on the best way to meet our manifesto commitment on extending the civil rights of disabled people, and to make it comprehensive and enforceable. The taskforce comprised representatives from commerce and the voluntary sector, including disability organisations. It proposed various substantive and technical changes to the DDA, but it supported the overall approach of the Act and saw merit in retaining various key features.
The taskforce made recommendations on employment that anticipated many of the main
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provisions of the employment directive. We were able to take account of the taskforce's work when negotiating the directive, which was advantageous and helped us to steer the negotiations to enable us to continue with the approach in the DDA. We were assisted by the taskforce's view on what DDA provisions should be retained, what might need amending and which omissions needed to be put right. That is why the regulations still contain the concept of reasonable adjustments, and why they end unjustifiable employment exemptions and occupational exclusions.
The directive was adopted in November 2000 by the Council of Ministers. It establishes a general framework for equal treatment in employment and occupation, and requires member states to introduce legislation to prohibit discrimination in those areas on grounds of religion, belief, disability, age and sexual orientation. Member states have until December 2006 to ensure that the directive's disability provisions are implemented. We intend bringing those provisions into force on 1 October 2004—more than two years in advance of the required date.
I confirm that the draft regulations are compatible with the United Kingdom's obligations under the European convention on human rights.
Mr. Steve Webb (Northavon): Will the hon. Lady clarify the distinction, as I understand it, between the timetable for complying with the disability aspects of the directive and those dealing with age discrimination? She says that disability discrimination will be tackled more rapidly than required, whereas age discrimination will be dealt with at the last possible minute. Why is there that difference? Do the Government think that disability discrimination is a more important or urgent matter?
Maria Eagle: I certainly think that disability discrimination is an important and urgent matter, but that is not the reason.
The age discrimination provisions require substantial work to ensure that they are as good as they possibly can be. It is not easy to outlaw age discrimination in relation to employment, and there have not been many provisions in the past to deal with it. It is therefore important in framing legislation to take account of the views of all those concerned.
Much of the work that was required for the regulations was carried out by the disability rights taskforce. Therefore, the groundwork had already been laid. In that respect, it has been possible to come up with a consensus quickly that suits the vast majority of people with an interest in this subject. Of course, the taskforce is starting with a blank sheet of paper; we started with the DDA and existing provisions. I hope that that explains the situation.
I am pleased that we have been able to introduce the regulations now, in advance of the end date. Many disabled people have waited for a long time for such protection, so the sooner it can be achieved sensibly the better. In successive manifestos, we have been clear about the need to implement comprehensive and enforceable civil rights. We have already taken significant steps towards achieving that. The
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regulations are a further step; they enable us to build on existing practice and legislation on disability, while retaining key aspects, such as the reasonable adjustment approach to indirect discrimination, that have become well known to those people affected by them. They significantly strengthen and improve the DDA in many respects.
The regulations introduce major changes that will have a significant effect on society and disabled people. In particular, they will repeal section 7 of the DDA so as to end the current exemption of small employers. That will bring more than a million small employers under the coverage of the DDA, so employees working for those firms and those seeking jobs with them will be protected, which they are not currently. They will be protected if they have a disability, develop one or have recovered from one. Those employers, employees and jobseekers will also have the right to reasonable adjustment to help ensure that there are no artificial barriers to their taking up or keeping a job.
The regulations will also bring excluded occupations within the scope of the DDA. Many occupations—police, barristers, Scottish advocates, partners in business partnerships and persons who are not technically employees—will be covered because they hold an office. That will also include people whom the Government appoint to public offices. That will change the way in which people at all levels of society are protected and have to behave. It will affect people who can often influence others by their behaviour and views.
The regulations make other changes that will be widely welcomed by disabled people. They outlaw direct discrimination, and end the current approach in the DDA that allows an employer to justify the failure to make a reasonable adjustment, which has often rightly been seen as a double hurdle to a person bringing a case. The provisions bring practical work experience placements in the context of vocational training within the scope of the DDA. They extend the DDA's protection to claims of discrimination from former employees, when discrimination has arisen out of or is closely connected to the former employment. They ensure that instructions and pressure to discrimination, and advertisements that indicate an intention to discriminate against people, are unlawful, and they empower the Disability Rights Commission to bring actions to enforce the new regulations.
The regulations introduce to the DDA specific provisions for ensuring that harassment against disabled people is unlawful. The DDA currently prohibits employers from discriminating against employees by subjecting them to ''detriment''. The employment code of practice states that harassment will almost always amount to a detriment, but we are putting that beyond doubt—
Sitting suspended for a Division in the House.
Maria Eagle: I was referring to the concept of detriment in the current DDA and suggesting that the
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law, as it stands, would probably include harassment. However, in any event the regulations are putting beyond doubt the question whether harassment is unlawful under the law by setting it out, providing a clear definition and making it apparent that such treatment is unlawful.
The regulations also extend part 2 of the DDA to qualifications bodies that confer professional or trade qualifications, such as the General Medical Council and the Law Society. Such bodies will have to justify objectively any competence standards that they apply to show that they meet the requirements of the law.
I do not deny that the regulations are complex. However, they make extensive and significant amendments to the DDA. We have done a number of things to facilitate the task of those to whom the requirements apply in getting to grips with the new provisions. I hope that members of the Committee have a copy of the document that sets out how the Disability Discrimination Act will look if and when the regulations come into force. It gives a clearer picture of the changes that the regulations make, because it sets them out in terms, instead of referring to a different document as the regulations do.
First, when extending the DDA to new areas we have followed the Act's familiar structure of prohibiting discrimination and imposing duties to make reasonable adjustments. Those two concepts are simple. We therefore hope that people will understand them because they are familiar with the concepts and the changes that are being made.
Secondly, we have taken the opportunity to simplify the DDA by making common provision for the whole of part 2 that relates to the definitions of ''discrimination'' and ''harassment'', and on the content of the duty to make reasonable adjustments. Thirdly, we have incorporated some elements previously found in separate DDA regulations—such as those that deal with contract workers—to make the DDA as amended more transparent. Fourthly, we have produced a consolidated text that most Committee members have seen.
Fifthly, where the DDA is extended to new areas—for example, barristers and partners—we have tried wherever possible to follow the existing wording of the sex and race discrimination Acts with which employment advisers and tribunals are already familiar, and about which there is already extensive case law.
Finally, the DRC will revise the existing statutory codes of practice that relate to areas within the scope of the regulations, to ensure that employers and others have clear practical guidance on how to comply with the changes. It is to information and advice like that—and especially the advice that the DRC has in the code of practice—that people will turn when implementing the duties.
It may be helpful if I say a little about the new provisions that outlaw direct disability discrimination. We will protect disabled people from less favourable treatment that has its roots in prejudice. Employers will not be entitled to justify such treatment under the
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amended DDA. It would be unlawful behaviour. We will provide increased protection against blanket bans.
The test for direct discrimination is whether the disabled person has been less favourably treated on the grounds of his disability than a non-disabled person whose relevant circumstances and abilities are the same. For example, direct discrimination would occur if an employer who disliked disabled people dismissed a disabled employee for taking four weeks' sick leave, while allowing a non-disabled employee who had taken the same amount of sick leave to remain in employment. There would be no direct discrimination if the employer applied a policy of dismissing all employees who took four weeks' sick leave. In such a case, a disabled employee who was particularly disadvantaged might well have a good claim for failure to make adjustments to the policy in his particular case.
The employer would still have to justify any less favourable treatment under the DDA's ''material and substantial'' test. We believe that that is a straightforward way of dealing with that matter. The formulation of the test for direct discrimination will achieve the result we want, because it requires comparison with a non-disabled person with the same abilities.
I want to make it clear what the regulations do not do. They do not implement the provisions of the directive concerning disability discrimination in occupational pension schemes by trustees or managers of those schemes. We intend to lay separate regulations in the autumn on that issue, after we have had further discussion with the DRC and the pensions industry. Nevertheless, the regulations implement occupational pension provisions relating to employers' responsibilities because they address all other responsibilities of employers, their employees or job applicants. Ministers in the Department for Education and Skills will be making proposals for regulations to implement changes required by the directive, which would affect part 4 of the Disability Discrimination Act 1995 relating to education.
The regulations are not the end of the road for civil rights for disabled people. They are a further and important step towards meeting our manifesto commitment to extending rights and opportunities for disabled people, but there is still more that we plan to do. We are going to publish a draft disability Bill later this year, which will cover other measures arising from our 2001 consultation document ''Towards Inclusion''. The measures that we are implementing are the result of extensive consultation during the last three years. ''Towards Inclusion'' consulted on proposals for changing the DDA, many of which have coincided with the directive's requirement.
We consulted in December 2001 on our proposed approach to implementation of the directive in the document ''Towards Equality and Diversity''. In October of last year we consulted on an earlier draft of the regulations in our document ''Equality and Diversity: The Way Ahead'', and we have provided
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detailed explanations of our transposition intentions in the document and in the accompanying explanatory notes, which are rather thick as a result.
We received more that 1,500 responses to those consultations from a wide range of interested bodies and individuals, including many disability organisations, individual disabled people, employers, employers' organisations and industry bodies. Those comments have helped inform the drafting of the regulations. In that context, I commend the regulations to the Committee. They represent real and irreversible progress towards comprehensive civil rights for disabled people. They form an essential part of the onward march to full participation in all aspects of life by disabled people in Britain. That is our goal, and I am proud to recommend the regulations to the House.