Memorandum submitted by Equality and Human Rights Commission Disability Committee (E18)

 

Who we are and what we do

The Equality and Human Rights Commission's Disability Committee (the Committee) was established in September 2007. We are a statutory Committee with decision making powers which were conferred to us by Parliament. With respect to disability matters, the Disability Committee is tasked with

 

1 Protecting and promoting equality;

2 Protecting and promoting human rights; and

3 Ensuring good relations.

 

The Committee's duties include monitoring and providing advice on the effectiveness of equality enactments, including the likely effects of proposed changes in the law upon the promotion of disability equality.

 

Introduction

1. The Committee strongly welcomes the Government's landmark Equality Bill which we believe will ensure that Britain is well placed to find and support the talent we need to drive our economic recovery. Overall we think the Bill is well framed and proportionate and will help unblock some of the systemic problems that get in the way of equality for everyone in Britain. We believe the Bill will ease the burden on employers of complying with equality legislation, and the single duty will make it easier for public bodies to tailor public services to meet their communities' needs.

2. We are particularly supportive of the following measures:

 

· Removal of the list of 'normal day to day activities' from the definition of disability

· Extension of protection from disability discrimination by association or perception (although we do have some concerns - please see the Equality and Human Rights Commission's submission to the Committee for further details)

· Simplifying the law by including a single trigger for reasonable adjustments

· Including a single test of objective justification

 

3. The Committee is committed to the principle of no regression, including ensuring that the distinctive features of disability discrimination law are maintained and where necessary strengthened by the Bill.

 

Maintaining the distinctive nature of protection against disability discrimination

 

4. Generally, equality law protects everyone and requires that no one is treated differently on grounds of a protected characteristic such as their age, ethnicity, sexual orientation. The Disability Discrimination Act (DDA) takes a very different approach. Firstly, it has historically offered protection only to people defined by the Act as having a disability. This is because whereas everyone has an age, ethnicity or sexual orientation, not everyone has a disability. Secondly, rather than 'equal treatment', it places its emphasis on securing the different treatment necessary to recognise and accommodate disabled people's diverse personal characteristics and requirements. Lying behind this approach is the progressive goal of removing the barriers which prevent disabled people's full participation in society.

 

5. This underlying concept captured in the pre-Malcolm judgment[1] notion of disability related discrimination, is central to the idea of 'reasonable adjustments' and explains why the Disability Equality Duty requires public authorities to take account of people's disabilities even when doing so requires that disabled people are treated 'more favourably'. The Committee wishes to satisfy itself that the Equality Bill builds upon and strengthens this approach.

 

Definition of disability

6. The Bill removes the list of 'normal day to day activities' from the definition of disability so potentially opening up protection to individuals whose impairments or conditions did not readily match these 'capacities', but it repeats the requirement that the effects of an impairment are long-term.

7. Doing so risks limiting the value of the legislation in addressing discrimination faced by people with short term or fluctuating impairments - especially mental health conditions - and therefore the contribution it is able to make to wider policy objectives including reducing the flow of people onto Employment and Support Allowance (previously Incapacity Benefit).

8. The word 'substantial' is used both in relation to the definition of disability and in relation to the disadvantage giving rise to the duty to make reasonable adjustments. Guidance and codes of practice explain that substantial should mean 'more than minor or trivial', but despite having to take this into account, court judgments to date have differed as to the meaning to be given to the word substantial. For greater clarity and simplicity, it may be beneficial to further define terms such as 'substantial' within in the legislation rather than rely solely upon guidance and codes of practice to do so.

Discrimination arising from disability (Clause 14)

9. The Commission welcomes the Government's decision to include a specific clause on 'discrimination arising from disability' which is designed to fill the gap in the law revealed by the Malcolm judgement. We do however have some concerns on the detail of the clause. In particular:

· The wording of the clause, 'because of B's disability', is insufficiently distinguished from that used for direct discrimination 'because of a 'protected characteristic'. This suggests that an act of discrimination may need to involve some degree of conscious intent and that a person would be required to demonstrate a far greater degree of 'causation' between their disability and the detriment they experience than was the case under the 'disability related discrimination' approach which preceded the Malcolm judgment.As a consequence the clause may fail to achieve its aim of addressing the range of individualised forms of indirect discrimination experienced by disabled people which are not otherwise addressed by the Bill.

 

Reasonable adjustments

 

10. The Commission is currently considering the reasonable adjustment clauses. We welcome the introduction of a single trigger ('substantial disadvantage') for the duty to make reasonable adjustments across all areas (which differs from current legislation). However we are concerned that the duty is constructed so that its primary focus is 'avoiding disadvantage', as opposed to removing the barriers which prevent disabled people's full participation. This may mean for example that a shop which is physically inaccessible could meet its legal duties to avoid disadvantaging a disabled person by providing a service in an alternative way, even where it would be reasonable for them to make physical alterations to the premises which allowed the person to gain access.

11. We are also concerned that the Bill (through clause 22) introduces a new comparator test in relation to reasonable adjustments requiring that 'like is compared with like' as the starting point in judging whether discrimination has occurred, which is not the case under the current DDA. The risk with this approach is that it provides employers or service providers with the opportunity to avoid making an adjustment where it can be established that another person faces the same or similar disadvantage (and therefore that no comparative disadvantage exists).

 

Disability in the new Public sector equality duty

12. The Commission welcomes the new outcomes-focused, streamlined approach to the equality duty and believes this will help public bodies deliver fair public services more efficiently. However, we wish to satisfy ourselves that the proposed duty adequately transposes the explicit requirement on public authorities to take steps to take account of people's disabilities, even where that involves treating disabled people more favourably than others. The Commission is considering this matter and will provide further briefing to the Committee in due course.

13. Recent research published by the Commission demonstrated the far greater levels of risk faced by disabled people of being subjected to violence and hostility in the communities in which they live. The existing Disability Equality Duty places duties on public authorities to address such negative behaviours requiring that they pay due regard to eliminating harassment and to promoting positive attitudes towards disabled people. In the Equality Bill, these duties are replaced by duties to tackle prejudice and promote understanding. The Committee wishes to be confident that these provisions adequately direct public authorities to address hostile behaviours towards disabled people, and other

Pre -employment health questionnaires

14. The Committee believes that the Equality Bill should clarify the law with respect to the use by employers of pre-employment health questionnaires. The DDA is proving inadequate in addressing recruitment problems. Many employers still ask medical questions about applicants' disabilities prior to job interview and selection. This enables employers who wish to discriminate to simply reject disabled applicants at an early stage. It is extremely difficult to prove such discrimination. In any event some disabled applicants are discouraged by questions from even proceeding with their application. We believe that such questions prior to job selection should be prohibited. The Committee believes the Equality Bill should adopt an approach based on the Americans with Disabilities Act (ADA) in only permitting the use of such questionnaires once a conditional job offer has been made, and only where all 'entering employees' are subjected to such an examination regardless of disability. The clauses from the ADA are included in the appendix.

Education

15. Schools are exempt from some of the duties to make reasonable adjustments. This is because it was assumed at the time of extending the DDA to schools in 2001 that the Special Educational Needs (SEN) framework would deal with any child's need for 'auxiliary aids and services'. However, it has since become apparent that a significant number of children require adaptations or support at school - for example children with medical needs - who do not qualify as having learning difficulties and who are therefore not held to have special educational needs. Furthermore, since the introduction of the DDA in schools, government policy has been to rely less and less upon the 'statementing' process and to encourage schools to cater for such provision from within their own resources. The Committee proposes that this exemption should now be lifted, both to ensure such children are protected by the law and to provide fresh impetus to schools to become more inclusive. The Committee would not foresee the DDA replacing the rights accorded to children with Special Educational Needs by the Education Act 1996 (as amended by the Special Educational Needs and Disability Act 2001), but rather co-existing with these rights. This can be likened to the way the Access to Work scheme provides a source of support for individual and employers in securing adjustments where it would be unreasonable to expect the school to make such arrangements itself.

16. We welcome the transfer of schools education cases to the Additional Support Needs Tribunal in Scotland, but we want to be sure that children retain the right to pursue their own cases as they can in the Sheriff Court, and that legal aid remains available.

General Qualifications Bodies

17. The Equality Bill proposes that exam regulators in England, Scotland and Wales should have powers to determine the circumstances in which exam arrangements should not be subject to the reasonable adjustments duty by balancing the 'desirability' of making adjustments with the maintenance of public confidence in the qualification.

18. Whilst maintaining public confidence is an important objective of the exam regulators, the Commission will wish to be satisfied that this Clause will not lead to an erosion of disabled children's rights to adjustments in exam arrangements or the independence and objectivity with which the exam regulators are able to make such judgements. 

19. In Scotland, this poses a particular problem because the Scottish Qualifications Authority is both the exam body and the regulator.

 

Immigration (Schedule 3, Part 4, paragraph 16)

20. The Commission is currently examining the exemption in the Bill relating to disability discrimination with respect to immigration decisions (i.e. entry clearance, leave to enter/remain, vary/cancel leave to remain). The prohibition on discrimination will not apply if those decisions are made 'on the ground that it is necessary for the public good.'

The Commission is concerned that this exemption is too broad in its scope as it is not clear as to what would be in the 'public good' and there is no element of proportionately required to justify the discrimination. The Commission will provide a briefing on this and other exemptions in the Bill with which it has concerns, and be providing a proposed amendment.

 

 

Appendix

 

Americans with Disabilities Act approach to pre-employment health inquiries

 

Medical examinations and inquiries

(1) In general

The prohibition against discrimination as referred to in subsection (a) of this section shall include medical examinations and inquiries.

(2) Pre-employment

(A) Prohibited examination or inquiry

Except as provided in paragraph (3), a covered entity shall not conduct a medical examination or make inquiries of a job applicant as to whether such applicant is an individual with a disability or as to the nature or severity of such disability.

(B) Acceptable inquiry

A covered entity may make pre-employment inquiries into the ability of an applicant to perform job-related functions.

(3) Employment entrance examination

A covered entity may require a medical examination after an offer of employment has been made to a job applicant and prior to the commencement of the employment duties of such applicant, and may condition an offer of employment on the results of such examination, if

(A) all entering employees are subjected to such an examination regardless of disability;

(B) information obtained regarding the medical condition or history of the applicant is collected and maintained on separate forms and in separate medical files and is treated as a confidential medical record, except that

(i) supervisors and managers may be informed regarding necessary restrictions on the work or duties of the employee and necessary accommodations;

(ii) first aid and safety personnel may be informed, when appropriate, if the disability might require emergency treatment; and

(iii) government officials investigating compliance with this chapter shall be provided relevant information on request; and

(C) the results of such examination are used only in accordance with this subchapter.

(4) Examination and inquiry

(A) Prohibited examinations and inquiries

A covered entity shall not require a medical examination and shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

(B) Acceptable examinations and inquiries

A covered entity may conduct voluntary medical examinations, including voluntary medical histories, which are part of an employee health program available to employees at that work site. A covered entity may make inquiries into the ability of an employee to perform job-related functions.

(C) Requirement

Information obtained under subparagraph (B) regarding the medical condition or history of any employee are subject to the requirements of subparagraphs (B) and (C) of paragraph (3).

June 2009

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[1] In the Malcolm vs. Lewisham case, a council tenant with schizophrenia was evicted for sub-letting his home without seeking prior permission from the council. Mr Malcolm's solicitors argued that the subletting was caused by his schizophrenia, which involved a susceptibility to distortions in thinking. The council was therefore seeking possession for a reason related to his disability, in breach of the DDA. The Lords decided that there was no breach of the DDA, as his case should be treated in the same way as any other tenant who had sublet, regardless of his disability. The Government pledged to address the gap left by the Malcolm judgment and consulted on its proposals in late 2008. The Commission and others were critical of the Government's proposals to rely entirely on 'indirect discrimination'. The Commission subsequently proposed a model which combined indirect discrimination with a modified version of 'disability related less favourable treatment'. The Commission will closely scrutinise the final proposals contained in the Bill to ensure the Act resolves this situation to the benefit of disabled people.