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


Discrimination law has developed over a number of years and is set out in nine major pieces of legislation, including the Disability Discrimination Act 1995 (DDA). We welcome the Government's intentions to simplify and streamline legislation across the different equality strands into one single Equality Bill. This will make discrimination law compliance and understanding easier.

However, we believe that disability discrimination requires a difference in approach compared to other equality law. Rather than being based on the idea of treating people in the same way, it should be predicated on the idea that we need to treat people differently to accord disabled people equal opportunities. The challenge is to bring disability discrimination law within that broad family of equality law whilst recognising those key differences. We welcome the Minister's assurance that the new Bill will not resile from current protection for disabled people.

To meet this objective, the Government has to respond to the recent judgment in the Lewisham v Malcolm case, which changed the previously accepted meaning of disability-related discrimination. DWP conceded that the judgment has "disturbed the balance between the rights of the disabled person and the interests of those with duties under the legislation." We believe the Government should use the opportunity the Equality Bill presents to re-establish a version of disability-related discrimination that existed before the Malcolm judgment, which was well understood by employers and employees alike.

We believe that preserving strong disability rights by re-instating a modified version of disability-related discrimination needs to go hand in hand with an adequate defence for those with duties under the legislation. Harmonising the different provisions that currently permit employers, service providers, landlords and others to justify disability discrimination in certain circumstances will ensure a balance between their responsibilities and the rights of the disabled person.

We welcome the Government's intention to simplify discrimination legislation by extending the concept of discrimination to association and perception across all strands. We note however, that this does not provide carers with a right to request reasonable adjustment, which may be necessary in order to ensure their effective participation in the workplace. The single Equality Bill is also the first opportunity to address multiple discrimination and should clarify that a discriminatory practice includes a practice based on a combination of discriminatory grounds.

We have also heard that one of the greatest obstacles to improving employment opportunities for older people is the continued existence of the statutory default retirement age in the Employment Equality (Age) Regulations 2006. We believe that this regulation contradicts the Government's wider social policy and labour market objectives to raise the average retirement age and allow people to continue to work and save for their retirement and should be removed.

The passing of the DDA 1995 marked a major milestone in the securing of rights for disabled people in employment. However, whilst the overall employment rate of disabled people has increased since, the employment rate for people with mental illness, phobias or panic has remained substantially lower (at just over 10%) than the employment rate for those with most other types of impairment. The Government needs to refresh its approach to supporting disabled people into employment and to make sure it reflects the added complexity of needs of people with mental illnesses and learning disabilities.

We have heard that too many employers and disabled people are unaware of what support is available for them through the Access to Work scheme. The scheme also needs reform to better support people with mental and fluctuating health conditions. To achieve this objective, it needs to be more flexible, individualised and portable, where appropriate. This would give disabled people the confidence to talk about their disability when applying for jobs and would give greater assurance for employers too that support was available.

DWP research identified recruitment as the most common source of discrimination against disabled people. We therefore endorse the Disability Rights Taskforce's recommendation that disability related enquiries before a job offer should be permitted only in very limited circumstances. We are also extremely concerned by the evidence from the Employers' Forum on Disability that 85% of online recruitment sites were inaccessible and that 1.3 million people were being prevented from applying for jobs.

There is a sharp discrepancy between disabled peoples' perception that discrimination in recruitment is a major problem and the number of recruitment cases taken to employment tribunals. We believe that the Equality and Human Rights Commission should take a strategic approach to improving enforcement by taking on cases in recruitment to improve compliance with the law. We also recommend that the Bill gives wider powers for tribunals to make recommendations on employers' policies and practices, including recruitment processes, and allows for greater use of representative and class actions.

We have heard that the provisions of the DDA in goods, facilities and services lack teeth. Witnesses highlighted the complexity of county court rules and potential liability for significant costs as barriers to those seeking to pursue goods, facilities and services claims. We believe the Government should introduce provision for an equality tribunal in the single Equality Bill, empowered to hear all types of discrimination claims, but with the ability to transfer certain types of case - such as housing or actions against the police - to other courts where appropriate.

The public sector has an important role to play in promoting equality. The existing equality duties require public authorities to have due regard to the need to eliminate unlawful discrimination and harassment and promote equality of opportunity. We welcome the Government's intention to introduce an integrated equality duty (covering race, sex, disability, sexual orientation, religion or belief and age) on all public authorities. We would like to see the single duty in the public sector working well and achieving its equality objectives. To succeed, it needs improved monitoring and enforcement mechanisms.

However, we have heard concerns that currently equality schemes are often not as effective as they could be and merely represent a tick-box exercise; it is essential that they focus more on outcomes than on the scheme process itself. We call on the Government to conduct thorough research into the quality of equality schemes in the public sector, the effectiveness of their implementation, the administrative burden they impose and particularly the impact of this process on equality outcomes.

Finally, the division of responsibility for equality issues within government departments is confusing and risks undermining the effectiveness of any single Equality Act. The Government Equalities Office should lead on equality matters after the single Equality Act comes into force. The Government Equalities Office should also lead on all of the Public Service Agreement targets that relate to inequalities and discrimination.

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Prepared 29 April 2009