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Memorandum submitted by the Disability Charities Consortium (E01)
Contents of this submission 1. About us 2. Overview of our comments on the Bill 3. Detailed comments on our main areas of concern 4. Key areas that we would encourage the Committee to clarify with Ministers5. Other areas of concern within the Bill 6. Contact details
1) About us1.1
The Disability Charities Consortium
(DCC) is an informal coalition of seven disability charities: Leonard Cheshire
Disability, Mencap, Mind, RNIB, RNID, RADAR, and Scope. We offer information,
support and advice to over ten million disabled people in the
1.2 DCC Members would welcome an opportunity to present oral evidence to the Committee, further elaborate on points raised in this submission and answer the Committee's questions. Should we be asked to do so we would be happy to arrange for a small delegation of representatives from some of our members to represent the views of us all.
2) Overview of our comments on the Bill 2.1 We welcome the Equality Bill, which should simplify and strengthen existing disability discrimination law, making it easier to understand and use for both disabled people and for organisations that need to comply with the legislation.
2.2 The Equality Bill is an opportunity to facilitate greater progress towards substantive equality for disabled people, and to afford disabled people the same level of protection as people with other protected characteristics. However, disability discrimination differs in one significant respect from discrimination on other grounds. As the Work and Pensions Committee recognises in their report on the Equality Bill[1], achieving disability equality often requires different treatment to accord disabled people equal opportunities, and this is recognised legally in the concept of the duty to make reasonable adjustments - a duty which applies only in the context of disability. Therefore a uniform set of duties will not deliver equality of outcomes for disabled people.
2.3 It is vital that as well as achieving the objective of harmonising and simplifying discrimination legislation across all strands, the Equality Bill retains the specific features needed to ensure that disabled people are not disadvantaged.
Two important principles guide us in this:
· To retain the asymmetric character of disability discrimination legislation where necessary i.e. only a disabled person can claim protection against disability discrimination (as can a person associated with a disabled person or perceived as a disabled person in some circumstances); a non-disabled person cannot claim discrimination if a disabled person is treated more favourably; · To ensure that the proposed legislation will not lead to a reduction in disabled people's rights not to be discriminated against.
2.4 We also believe that for the duties to be workable for duty-holders, it is necessary to build in some specific provisions in respect to disability.
2.5 We are very pleased that the Government has recognised the need for different treatment to some extent. For example, the Bill retains the duty to make reasonable adjustments and it removes the need for a comparator in order to show that a disabled person has suffered detriment because of disability. However, there are a number of areas where we have significant concerns that the level of protection for disabled people falls short of what we might have expected from the Equality Bill, or that they currently enjoy under the DDA.
3) Detailed comments on our main areas of concern 3.1 The DCC believes that in the following areas there are real risks that the rights of disabled people could be diminished given the proposed wording in the Bill:
· Public sector equality duty · Discrimination arising from disability: causal link and knowledge · Reasonable adjustment duty: use of comparator and anticipatory duty · Occupational requirements: contradictory to asymmetric nature
3.2 Public sector equality duty 3.2.1 We welcome the single Public Sector Equality Duty. However, it is vital to ensure that the Public Sector Equality Duty will achieve the same outcomes as the Disability Equality Duty. There are four areas of the duty that need further explanation from the Government:
a) More favourable treatmentWe want to ensure that public authorities must have due regard to the need to take account of the needs of disabled people, even where this involves more favourable treatment e.g. setting up a system to allow deaf people to contact the police through SMS when other people cannot do this). Currently, the Equality Bill provides that public authorities may treat people more favourably (to meet their needs); this is a different proposition than having to take account of the needs of disabled persons' disabilities even where this involves more favourable treatment. This requirement in the Disability Equality Duty stems from the fact that it is established case law that the duty to make reasonable adjustments can, in some cases, require more favourable treatment.[2]
b) Scope We are concerned that the General Duty will apply to listed public authorities only as we believe that the current approach in the Disability Equality Duty and the Gender Equality Duty works well. With these, the General Duty applies to public authorities in general and the Specific Duties apply to listed authorities only. In this context we are concerned that the current list is very limited. For example, crucial bodies such as inspectorates and regulators are missing from the list.
c) Monitoring and enforcement Currently the Equality and Human Rights Commission is responsible for the enforcement of the equality duties for 52,000 public bodies. This enforcement will be more effective if they are supported by inspectorates and regulators. We would welcome a specific role for inspectorates and regulators in the Equality Bill.
d) Specific Duties We are extremely worried that the Government has delayed the publication of the Specific Duties until a later, unconfirmed date but unlikely to be before the Committee Stage of the Equality Bill in the House of Commons. We urge the Government to publish their proposals for the Specific Duties in time for Committee Stage.
3.3 Discrimination arising from disability: causal link and knowledge 3.3.1 This is a new provision in the Equality Bill to restore protection of disabled people against disability-related discrimination. Discrimination occurs when certain treatment amounts to a detriment for a disabled person because of that person's disability and the comparator provisions in clause 22 do not apply to this type of discrimination. We welcome this provision as it removes the need for a comparator, which is not appropriate as same treatment can have a different impact on a disabled person than on a non-disabled person. For example, you cannot compare a person with cancer who needs go for treatment on certain days to a person who refuses to work on the same days because they are training for a sports competition. However two issues remain:
a) what is the intention of the Government behind the use of the words 'because of' rather than 'related to' as is used in the harassment provision and which has an established meaning?
b) the knowledge requirement places great faith in the ability of duty-holders to recognise that certain behaviour is related to a disability, particularly in relation to mental health, where stigma and misunderstanding surrounding different conditions is widespread. For example, the effects of some medication, such as slurring words which can be a side-effect of anti-psychotic drugs, may be mistaken for drunkenness. The requirement carries the risk of narrowing the protection against discrimination arising from disability as the level of awareness is still low amongst members of the public; and it is not required in respect to other protected characteristics (where other types of discrimination are involved). This is a clear regression from the rights that disabled people currently have under the DDA, where there is no knowledge requirement. We are concerned that this will restrict the ability of disabled people to claim discrimination arising from disability
3.4 Reasonable adjustment duty: use of comparator and anticipatory duty 3.4.1 We welcome the uniform approach to the reasonable adjustment duty. And the fact that the threshold to trigger the reasonable adjustments duty has also been set at the lowest level provided by the DDA.
3.4.2 However, it seems that the Equality Bill has gone too far in its efforts to simplify the duty.
3.4.3 The DDA provisions regarding the provision of goods, facilities and services, the exercise of a public function, the use of transport vehicles, private clubs and education already contain an 'anticipatory' duty to make adjustments which requires service providers and others to anticipate the needs of disabled people.. We are concerned that the Equality Bill hasn't sufficiently captured the anticipatory nature of this duty, and that it should, in fact, be extended to employment and occupation, qualifications bodies, and providers of housing, rather than diminished or removed.
3.4.4 We would welcome reassurances from the Government that they intend to retain the anticipatory duty. We see no reason why the comparator provisions should apply to the reasonable adjustment duty as this would significantly weaken it and no justification for their application has been presented.
3.5 Occupational requirements: contradictory to asymmetric nature 3.5.1 The inclusion of disability as a protected characteristic within the provisions for occupational requirements and positive action is contradictory to the asymmetric nature of disability discrimination legislation. A non-disabled person cannot claim discrimination if a disabled person is treated more favourably. This is because more favourable treatment can be necessary in order to offer equality of opportunity. This is also the principle behind the duty to make reasonable adjustments. For example, a person with a learning disability may be offered a work trial in order to demonstrate their ability to do a job. Deaf and blind people may be offered priority booking for an accessible performance of a popular theatre show, as they won't have the same opportunities as other people to watch the show.
3.5.2 We believe that the inclusion of disability as a protected characteristic is confusing and will lead to employers and other duty-holders interpreting the duty to treat people more favourably in very narrow terms (as for other protected groups). Positive action in relation to disability has never been unlawful, nor will it be if these provisions have been brought in, but we are concerned that the way in which the provisions are currently framed in the Bill imply that the same restrictions apply to disability as apply to the other grounds. It is important to ensure that employers and others are fully aware of the fact that any positive action in the disability context is lawful.
4) Key areas that we would encourage the Committee to clarify with Ministers4.1 There are a number of other key areas where we would seek clarification as to the current proposals, and where we want to see protection of disabled people against discrimination strengthened. This includes the following areas:
· Long-term requirement of disability · Perceived disability · Pre-employment disability-related questions: permissible in limited circumstances only · Education · Multiple discrimination
4.2 Long-term requirement of disability 4.2.1 Compared to other groups, disabled people are at a significant disadvantage when claiming discrimination because of the way the definition of disability operates, in particular the long-term requirement and the 'normal day-to-day activities'. Since some mental health problems are fluctuating in nature, the requirement that the impairment is 'long-term' (likely to last or have lasted for more than 12 months) can be a barrier for people when they challenge discrimination relating to their mental health. In many cases it can also be very difficult to predict what the duration of a mental health problem is likely to be.
4.2.2 Many claims fail because of the expenses and complexities of obtaining medical evidence that the claimant is a disabled person for the purposes of the Disability Discrimination Act. Despite strong support from Parliament and recommendations from the Disability Rights Commission, the Government has not addressed the issue apart from removing the list of capacities. We wish to see the 'long-term' requirement removed.
4.3 Perceived disability 4.3.1 The Equality Bill makes it possible for non-disabled people to claim protection from direct discrimination or harassment because they are associated with a disabled person or perceived to be a disabled person - or another protected characteristic. This is a significant step as it moves the focus from the disability of the disabled person to the allegedly discriminatory treatment itself and the reason for that treatment.
4.3.2 There are many people who are perceived to be disabled but may not meet the definition of disability. One significant group is people who have experienced mental health problems at some point in their lives, for example a depression lasting four months. The depression may not have had a long-term impact, however employers may still decide to deny them a job offer as soon as they become aware of the episode. Will these people be able to claim direct discrimination, as they are, in fact, perceived to be a disabled person?
4.3.3 We would welcome clarification from the Government on how they see 'perceived disability' work in practice, and in particular whether additional provision is needed to address the long-term requirement.
4.4 Pre-employment disability-related questions: permissible in limited circumstances only 4.4.1 Some employers require a disabled person to disclose their disability when applying for a job (i.e. by including a question on the application form rather than/as well as on the monitoring form which is voluntary and confidential). Employers may also require a prospective employee to pass a medical assessment before they can be offered a job, even when this is not necessary to carry out the job (for example, it would be acceptable to require an eye test for the post of a driver, but eyesight is usually not relevant for a desk job).
4.4.2 Many employers have said that they would not employ a disabled person, whilst disabled people are also reluctant to apply for a job if they have to declare a disability because they know it will limit their chances of being shortlisted for a job interview. A snapshot poll by Mind conducted in October 2008 found that 1 in 4 people had job offers withdrawn after disclosing a mental health problem, despite this being illegal under the Disability Discrimination Act.There is also evidence that disability and sickness-related information do not predict a person's level of absence in work.
4.4.3 In theory it is possible to claim disability discrimination if a disabled person does not get an interview or job offer because of their disability. However this is very difficult to prove; the process is not transparent, and tribunals do not treat disability-related questions as evidence of discrimination in the same way as they would treat questions about marital status and pregnancy.
4.4.4 The Work and Pensions Committee has recommended that the Equality Bill makes provision that disability-related questions are only allowed in limited circumstances. We would welcome the Government making this provision.
4.5 Education 4.5.1 The Equality Bill replicates the provisions of the DDA (as amended by the Special Education Needs and Disability Act 2001 and later legislation), and schools will still be required to have accessibility strategies. They will also be subject to the new Public Sector Equality Duty, with respect to the General Duty.
4.5.2 The Bill does not address the interface between the definitions used in the Special Education Needs legislation and the Disability Discrimination Act.
4.5.3 The scope of the duty to make reasonable adjustments is still restricted, and excludes changes to physical features and providing auxiliary aids. Of particular concern is the power of regulators such as OFQUAL to determine which parts of exams are not subject to the reasonable adjustments duty ('exam clause').
4.6 Multiple discrimination 4.6.1 Disabled people can be discriminated on a combination of protected characteristics; they are now forced to claim discrimination on each separate protected ground even though this can be very difficult. We support the Work and Pensions Committee's recommendation that the Equality Bill make provision for multiple discrimination.
5) Other areas of concern within the Bill5.1There are a number of further areas of the Bill with which we have concerns, and which we hope can be addressed throughout the passage of the Bill through Parliament.
5.2 Enforcement 5.2.1 Whilst we welcome the new power for Employment Tribunals to order changes to policies and practices, and the obligation for courts to use an assessor, this will not do much to increase the ability of victims of discrimination to challenge discrimination. Until the law has real bite, there won't be much incentive for employers and others to change discriminatory practices. The current changes to the Tribunal System may provide a good opportunity to introduce Equality Tribunals to hear all discrimination cases.
5.3 Volunteers 5.3.1 We are extremely concerned that disabled people who are volunteers, or who wish to volunteer, do not receive the same level of protection against discrimination and harassment as people in employment or in public appointments, or office holders. On 4 March, Baroness Thornton said that volunteers are covered through the provision of facilities. We would welcome clarification that this is indeed the intention of the provision, and how the protection works in practice.[3]
5.4 Transport 5.4.1 The Equality Bill continues to exempt transport by sea and by air. We are concerned that disabled people do not have the same rights to accessible transport by sea and by air as they do when travelling on trains or buses or by taxi despite the existing European Air Regulations and forthcoming shipping regulations.
5.5 Immigration 5.5.1 The Equality Bill provides that, with respect to immigration, disability can be a ground for refusal to enter the country 'if it is for the public good'. We would welcome clarification what 'public good' means. This is a regressive step as currently there is no exemption from the DDA provisions on immigration grounds.
5.6 Armed forces 5.6.1 The Equality Bill continues to exclude Armed Forces from the scope of the Bill in respect to disabled people. The Joint Committee on Human Rights recently stated in relation to the UN Convention on the Rights of People with Disabilities that they had "seen no evidence to support the Government's position that this exemption is justified and appropriate, other than the desire expressed by the Ministry of Defence to retain control over the assessment of fitness for service". Therefore they deemed "the existing exemption [...] inconsistent with the requirements of the Convention and [it] would be subject to challenge without a reservation". They also said: "We reiterate our recommendation that the existing exemption should be reconsidered in the Equality Bill".[4]
6) Contact details 6.1 For any inquiries about DCC's submission to the Committee please contact either Public Affairs Manager, RNID or UK Parliamentary Manager, RNIB, who are co-ordinating parliamentary work on behalf of all DCC Members.
May 2009 [1] Work and Pensions Select Committee, 'The Equality Bill: how disability equality fits within a single Equality Act', HC 158-I and II, 29 April 2009 [2] Archibald v Fife Council (
[3] http://www.parliament.the-stationery-office.com/pa/ld200809/ldhansrd/text/90304-0001.htm [4] http://www.parliament.the-stationery-office.com/pa/jt200809/jtselect/jtrights/70/7006.htm#a3 |