The Equality Bill: How disability equality fits within a single Equality Act - Work and Pensions Committee Contents


Examination of Witnesses (Questions 120-124)

MR RUPERT HARWOOD, MR PETER PURTON AND MR JAMES SANDBACH

2 FEBRUARY 2009

  Q120  John Penrose: I am conscious of the time. You would presumably take a different view, both of you, or would you agree with that?

  Mr Sandbach: In principle, we would welcome a shift to certain businesses from courts to tribunals. The experience has been that the county courts are not terribly effective in dealing with these cases. It is a good idea but it would need a lot more work to get there because there are issues about the way the tribunal system is formed anyway, so it would mean a great deal more work on this area to be clear we can make that shift in the civil justice system towards tribunals. The key underlying question here is about access to representation and that is not available in discrimination cases for either courts or tribunals and that has to be a big weakness.

  Mr Harwood: It is probably very contentious but we would like the Government to look at the idea of the social security tribunals being able to decide whether there had been unlawful discrimination against benefit claimants. The problem you have at the moment is if somebody has their benefits stopped they are focused on going to a tribunal and getting that benefit started again and they are not therefore able to take an unlawful discrimination case. We would like the tribunals to be able to decide that as well at least under Section 21B discrimination by public authorities. We would like that to be looked at and we think that would be a very big area in terms of discrimination that has been going on.

  Q121  Greg Mulholland: I am conscious of the time so perhaps you could keep the answers as concise as possible please. Can I ask you all some questions about the Single Equality Act which we have already touched on. First of all, a fairly general question, which is how you see disability fitting in within the Single Equality Act? Do you broadly think it is a good thing and do you have concerns?

  Mr Purton: We do think it is a good thing that equality legislation should be in one statute and that equality provisions should be levelled up across the board to eliminate discrepancies that exist now to the highest levels. Secondly, as I have already indicated in answer to another question, we believe it is essential in the single Equality Act the specific nature of disability discrimination is recognised in the disability provisions. In other words, the key lesson, which I cannot repeat too often, in order to get equality of outcome you sometimes have to have unequal, more favourable treatment for disabled people. That is the key message which needs to come across, in our view, and I have already expressed views about how we think the equality duty itself should be covered in it.

  Mr Sandbach: As for the benefit of a single equality duty that is covering all the strands and bringing those strands together, you cannot cherry-pick equality because it is very much about disadvantage based on certain characteristics that you might not have chosen into your life but are part of your life circumstances. We do think there is support for continuing those strands in disability discrimination that encourages and obliges providers and employers to make these sort of adjustments.

  Mr Harwood: We think that combining strands could lead to compromises which disadvantage disability especially in relation to the duty and whether there is something equivalent to the more reasonable, more favourable treatment thing. We are also concerned, for example, that harmonisation might be an excuse in part to get rid of the disability related less favourable treatment but also overtime there could be harmonisation upwards as well, so it could go both ways. Our real concern is whether the major weaknesses in the DDA will now be addressed, not whether the different strands are combined.

  Q122  Greg Mulholland: Specifically in terms of the Malcolm case, what lessons do you think the Government should learn in terms of how disability differs from other strands of equality legislation, and how therefore should the Equality Bill reflect that?

  Mr Purton: The Equality Bill needs to reinstate disability related discrimination and our proposal argues that you do that by changing the old provision by removing the need for a comparator which will deal with the issue which the Malcolm case highlighted. Just to clarify, we support the introduction of indirect discrimination into disability law as well. We are quite happy with that. We just do not think, as our submission says, it is in any way an adequate replacement for disability related discrimination. I mentioned earlier some elements of the judiciary needing more training in equality legislation and I am afraid to say that the Malcolm lesson in our view reflects a certain failure to understand disability discrimination in the House of Lords, so you have the House of Lords actually changing the law and not Parliament, which was not the intention at all behind it originally. We cannot do anything about that, except by writing it in such clear and unambiguous terms that it is always going to be interpreted according to the meaning. For that, we have always argued that the new Equality Act needs to have a purpose clause which would then be used as a lever for interpreting all the subsequent clauses within the legislation.

  Mr Sandbach: I endorse everything that has been said there. I think that particularly disability legislation has become very hung up on the comparative approach and we need to reinstate disability discrimination and have an over-arching values or statement clause to help interpret what actually the legislation is trying to achieve in public policy terms.

  Mr Harwood: I guess the concern is we are getting an indirect discrimination provision with one hand and we are getting disability related discrimination taken away with the other. I think we agree with the EHRC that because of the different nature of disability discrimination certain problems, such as one-off acts of discrimination, will not be covered by indirect discrimination, so that needs to be addressed. Obviously we welcome the indirect discrimination idea but there are certain problems such as whether there will need to be a requirement for knowledge to prove a prima facie case of indirect discrimination, and we think it needs to be made explicit in the Act that there is not a requirement for knowledge. As regards the comparative thing, the impression I get is that Parliament has made it absolutely clear what the proper comparator was and the proper comparator is the one set out in the Clark v Novacold case, and I think all that needs to be done now is the Act needs to make it clear that that is the right comparator. Lord Bingham's other concerns in terms of justification in the premises area is now taken account of anyhow because of the objective justification defence.[4]

  Q123 Greg Mulholland: A final question. You are all in favour of the social model as opposed to the medical model definition of disability, do you think that implementing the Coleman case could be a way of moving the UK definition more towards the social model?

  Mr Purton: A two-part answer. On the one hand we very much welcome the Coleman ruling and its hopeful implementation through future legislation as a means of broadening the coverage and scope of the definition of disability within the law. On the other hand, it does not in and of itself change the focus of the law away from a medical approach of defining disability to one which identifies the barriers faced by disabled people as the problem; it continues to see disability and disabled people themselves as the problem. The short answer, I guess, to a fairly philosophical question, is philosophically no.

  Mr Sandbach: Certainly bringing Coleman into the Single Equality Bill and therefore bringing essentially discrimination by association and perception and those issues being potentially covered, would be quite a big step forward but I think it does also have some longer term policy implications and even policy implications in the way DWP delivers some of its services and some policies such as Carers' Allowance and other areas like that which would need to be looked at in light of that change.

  Mr Harwood: I have not seen the judgment but definitely the European Directive seems to require that it covers associative discrimination but also discrimination on the grounds of perceived disability and I think both of those now need to be included in the Act. Also I think the Directive covers harassment on grounds of disability so that might have to be included as well. As my colleagues have said, it does not address the fundamental weakness which is the medical model of disability, which means for example in an employment context that it would be lawful for an employer to dismiss without considering reasonable adjustments somebody who is likely to have a leg injury for ten months but not somebody who is likely to have a leg injury for 12 months. So it does not really seem to make sense. For the discrimination law to be effective, there does need to be a definition along the lines of what the DRC put forward. The Government seem to be saying in their response to consultation that now is not a good time to change the definition because there is so much else going on, but we would argue that now is the ideal time and not to change it now would bring a lot of confusion into the future.

  Greg Mulholland: Thank you.

  Q124  Chairman: A challenging session, for you rather more than us! Thank you.

  Mr Purton: Thank you.


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