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Additional Memorandum submitted by Disability Charities Consortium (E 24)
The Disability Charity Consortium welcomes the objectives of the Equality Bill - stronger, clearer legislation will make it easier to understand and use for both disabled people and for organisations that need to comply with the legislation. We particularly welcome the Government's committment to ensure that there is no weakening in legal protection for disabled people, and that the damaging impact of the House of Lords judgement (Lewisham v Malcolm, 2008 ) on disabled people's rights is repaired.
However, achieving these objectives is complex given that the distinctive features of Disability Discrimination Act diverge sharply from other equality legislation - and need to do so in order to address the unique barriers to equality confronting disabled people
It is vital that we make sure that disabled people do not lose some of the protection that they currently enjoy (or used to before the 'Malcolm' judgment). For this reason, we have highlighted a number of areas where we believe there is a real risk of regression. These are:
1. Asymmetrical approach to protection i. In wording of direct discrimination principle of asymmetry is not expressed clearly enough (Clause 13) ii. Extension of Positive Action (Clause 152) to disability risks undermining principle of asymmetry iii. Discretionary duty to treat more favourably in relation to Public Sector Equality Duty (Clause 143) is less powerful than existing duty iv. List of Public Authorities is likely to omit some important bodies
2. Comparators i. Wording of direct discrimination (Clause 13) ii. Safeguards in (Clause 14) Discrimination Arising from Disability inadequate to prevent another 'Malcolm judgment;' iii. Knowledge requirement sets a higher threshold than DDA to prove discrimination iv. Clause 22 introduces a much stricter comparator test for the reasonable adjustment duty where this currently does not exist
3. Reasonable adjustment i. Clause 19 Duty to make adjustments places the emphasis on taking steps to overcome the disadvantage rather than addressing the disadvantage itself. This undermines one of the fundamental principles in the DDA ii. Clause 19 removes the DDA duty to make anticipatory adjustments to avoid disadvantage, another vital aspect of protection from discrimination
4. General Qualifications Bodies (Clause 91) i. The Equality Bill gives regulators such as Ofqual the power to determine which parts of a qualification are not subject to the reasonable adjustment duty
5. Immigration (Schedule 3, paragraphs 28-30) i. 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'. This is a regressive step as currently there is no exemption from the DDA provisions on immigration grounds
Other key concerns
1. Definition of disability i. The definition of disability in the Equality Bill excludes disabled people with fluctuating conditions and the definition of 'substantial' is not defined on the face of the Bill
2. Pre-employment disability-related questions i. Unless prescribed pre-employment disability-related questions may adversely affect the chances of an offer of employment
Background: Distinctive aspects of the Disability Discrimination Act
Asymmetrical protection The most
distinctive feature of the Disability Discrimination Act (DDA) is that it only protects disabled people
from discrimination, not non-disabled people (see below under). This has meant
that, in contrast to other
Different treatment is understood in the DDA as central to delivering non-discrimination and equality more generally. In many situations more favourable treatment for disabled people is legally required as a form of 'reasonable adjustment'. Moreover, the Disability Equality Duty requires public authorities to have due regard to the need to " take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons" The other equality duties do not have this explicit requirement.
Limited use of comparators Another distinctive feature of the DDA was that it minimises the use of comparators, recognizing that the goal of the law is not to provide identical treatment but rather to provide fair treatment.
Whilst some of the aspects of the DDA may feature in relation to other equality 'strands' to a much weaker and more limited extent (for example in relation to pregnancy discrimination and in very limited forms of permitted positive discrimination) there are qualitative differences between disability equality law and that applying to other strands - and these differences needs to remain within the unified Equality Bill. Harmonization is limited in this respect.
We have grave concerns that the present drafting of the Equality Bill may not clearly enough capture and signal the intention to retain these distinctive features. This will confuse employers and service providers - making them more cautious about preserving the present approach to disability equality - ands leave the law open to restrictive interpretation by the courts. At the very least the present wording of many aspects of the Bill will lead to a prolonged period of legal uncertainty, and unnecessary litigation.
Areas of potential weaker protection
1. Asymmetrical approach
1.1 Wording of Direct Discrimination - Clause 13 Clause 13.3 provides that: "If the protected characteristic is disability, A does not discriminate against B only because: a) A treats a third person who has a disability in a way which is permitted by or under this Act, b) B does not have the disability, and c) A does not treat B in this way." This is the only indication that direct disability discrimination is intended to operate in a different way than other, symmetrical types of discrimination. We do not believe that it is a clear enough expression of this critical point.
1.2 Clause 152 Positive Action and Schedule 9, Part 1 genuine occupational requirements The Equality Bill includes disability as a protected characteristic within the provisions for occupational requirements and positive action. This is contradictory to the asymmetric nature of disability discrimination legislation. Positive action in relation to disability has never been unlawful, nor should it be if these provisions are 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 to the other grounds. This is confusing and will lead to employers and other duty-holders interpreting the duty to treat disabled people more favourably in very narrow terms (as for other groups). More crucially they may be averse to make a reasonable adjustment where this could lead to more favourable treatment because of concerns that they will fall foul of the law. The inclusion of disability in 'positive action' and 'genuine occupational requirements' is therefore superfluous and confusing and potentially regressive step.
1.3 Clause 143 Public sector equality duties
The public sector equality duty provides that compliance with the Duty may involve more favourable treatment. This is a regressive step as the current Disability Equality Duty requires public authorities to take account of disabled person's disabilities even where this involves more favourable treatment. The Equality Bill needs to restore this feature to make it clear that more favourable treatment is a requirement not something that can be undertaken at the duty holder's discretion.
The public sector equality duty will apply to listed public authorities only rather than to public authorities in general. This is a risky approach that could exclude some public bodies whose remit is important for disabled people.
2. Comparators
2.1 Clause 14: Discrimination arising from disability
The provision does not provide enough safeguards that another Malcolm-case will not happen. The clause links the treatment to the detriment, and creates a significant risk that where the court determines that as a non-disabled person suffered the same detriment, there was no unlawful discrimination against the disabled person. The definition needs to make it clear that the reason for the treatment is linked to the disability, not the treatment itself or the detriment.
2.2 Other concerns about this clause
2.2.1 The knowledge requirement sets a higher threshold than in the current DDA and is likely to lead to protracted and complex cases. We want it deleted. Instead there could be provision that knowledge of someone's disability can be a factor in determining justification or remedy.
2.2.1 The DDA clearly states that disability-related discrimination cannot be justified if the duty to make reasonable adjustments has not been complied with. The clarity of this approach needs to be retained. What the Clause 14. 3. currently says about the reasonable adjustment duty is confusing and could therefore be misinterpreted.
2.3 Comparators in relation to reasonable adjustments - Clause 22
The Equality Bill introduces a much stricter comparator test for the reasonable adjustment duty where this currently does not exist. This is not appropriate for the reasonable adjustment duty where the focus is on ensuring that the disabled person can actually do their job or can use the same level of service. We want to restore the DDA approach.
3. Other concerns about Reasonable Adjustments
Clause 19 Duty to make adjustments
In the Equality Bill the reasonable adjustment duty places the emphasis on taking steps to overcome the disadvantage rather than addressing the disadvantage itself. This undermines one of the fundamental principles in the DDA which is to ensure that disabled people enjoy the same level of access as non-disabled people. In the words of Lord Justice Sedley in Roads v Central Trains Ltd [2004] EWCA Civ 1541:
"The policy of the [Act] is not a minimalist policy of simply ensuring that some access is available to the disabled: it is so far as reasonably practicable, to approximate the access enjoyed by disabled persons to that enjoyed by that of the rest of the public".
This approach is consolidated in the anticipatory nature of the reasonable adjustment duty in respect to provision of goods, facilities and services, the exercise of a public function, the use of transport vehicles, private clubs and education.
We want to restore the DDA approach where the focus is on anticipating disabled people's access needs, removing the barrier before it arises, and where this is not reasonable, providing an alternative means.
4. Other regressive aspects of the Bill
4.1 Clause 91 General Qualifications Bodies The Equality Bill gives regulators such as Ofqual the power to determine which parts of a qualification are not subject to the reasonable adjustment duty. This replaces the current blanket exemption of 'competence standards'. We are concerned that the use of this power does not have the safeguards built in that are needed to ensure that account is taken of the needs of disabled students (whilst maintaining the integrity of the qualification), and therefore there is a real risk of regression. 4.2 Schedule 3, paragraphs 28-30 Immigration 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'. This is a regressive step as currently there is no exemption from the DDA provisions on immigration grounds. In fact, the UK Border Agency has the policy - "to ensure that asylum seekers are able to ask for assistance, and know that particular needs can be indicated. It should be made clear that disclosure of disability will not be a negative factor in the consideration of cases." http://www.ukba.homeoffice.gov.uk/sitecontent/documents/aboutus/workingforus/Three-strand_Equality_Scheme.pdf June 2009 |