38. Supplementary memorandum submitted by the National Aids Trust
NAT would like to provide the Work and Pensions Committee with updated information on our response to the Malcolm judgment, referred to in our original submission to the Committee at para.6.
Subsequent to our initial submission there was more detailed consideration within the disability sector on how best to restore effective protections from discrimination for disabled people. Whilst the introduction of provisions on indirect discrimination, as proposed in our original submission, is still strongly supported, we also believe the Government should revise the definitions of disability related discrimination so as to restore the originally intended scope of protection. Below are the key recommendations we later made to the consultation on the Malcolm judgment conducted by the Office for Disability Issues - 'Improving protection from disability discrimination':
Recommendation: The Government should adopt the concept of indirect discrimination for disability but this should be in addition to, not instead of, reforming disability related discrimination in the light of the Malcolm judgment.
Recommendation: The Government should use the opportunity the Equality Bill presents to introduce the necessary provision for reforming disability related discrimination, as set out by RADAR, which states:
"A person discriminates against a disabled person where he carries out an act which puts that person at a substantial disadvantage for a reason connected with their particular disability, and which cannot be justified as being a proportionate means of achieving a legitimate aim."
Recommendation: If the Government adopts its proposals on indirect discrimination, specific provisions should be inserted into the Bill to:
- clarify that indirect discrimination applies in relation to single acts or omissions;
- clarify that in relation to disability the relevant comparators are people in the same or similar circumstances but who do not have a disability or face issues connected with a disability; and
- provide that knowledge of the claimant's disability is not relevant for the purposes of establishing whether or not indirect discrimination has taken place.