Memorandum submitted by Cloisters Chambers

 

Introduction

1. Cloisters is a barristers' chambers specialising in discrimination and equality law. Many of our members have been involved in the leading cases under the Disability Discrimination Act 1995, and we welcome the opportunity to comment on the questions posed by the Committee, which affect us as practitioners on a daily basis.

2. The passing of the Disability Discrimination Act 1995 ("the Act") marked a major milestone in the securing of rights for disabled people. The Act has undoubtedly made a major difference to disabled people in employment situations - particularly in enabling retention, as a result of the obligation to make reasonable adjustments. The number of employment tribunal claims relating to disability discrimination has steadily increased. The latest employment statistics
(see http://www.employmenttribunals.gov.uk/Documents/
Publications/AnnualStatictics0607.pdf
) indicate that 5,533 employment tribunal claims claiming disability discrimination were lodged in 2007/2007, although only 3% of disability claims were successful at tribunal (the same percentage as those alleging race discrimination). Many of course are settled prior to hearing.

3. There have been some decisions which have had a major impact on the way in which the legislation has worked, not merely in the courts but also "on the ground" - in the workplace. These include in particular Archibald v Fife ([2002] ICR 954)- where the expansive nature of the reasonable adjustment duty was made clear - and - prior to Malcolm, which will be discussed later - Clark v Novacold ([1999] ICR 951) which made clear that disability discrimination is different, and that the focus in cases where treatment was related in some way to disability was whether an employer could justify it or not.

4. The Malcolm case has caused serious concerns amongst discrimination practitioners - not just because of its potential legal effects (in particular, rendering the UK government in breach of its duty to effectively transpose the European Employment Framework Directive) but because of the message that it sends out about disability rights and the DDA (in particular, comments made by the Lords about the problem, in a case where a guide dog user is refused access to a café because of the dog, being the dog rather than amounting to disability discrimination).

5. This submission will answer those questions that Cloisters feels qualified to deal with, under the questions posed in the DWP press notice.

6. In addition, however, we also wish to raise the issue of the definition of disability. Although a question not posed by the Committee (other than in the context of the Coleman decision) the definition is nevertheless critical to any examination of the Act. At present, unless the definition is met - or an individual can rely upon the European Employment Framework Directive - there can be no claim under the Act.

7. Ever since the DDA was passed there has been a strong body of criticism about its definition of disability on the basis that it derives from the medical model, focusing as it does on the functional limitations of an individual.

8. The social model of disability identifies "disabling barriers" rather than "impairment" as the problem to be tackled. Disabling barriers are the attitudinal, economic, and/or environmental factors preventing certain people from experiencing equality of opportunity because of an impairment or perceived impairment. The term 'disability' is used to describe a social experience. A disabled person might say, therefore, "My impairment is the fact that I can't walk; I am disabled by the fact that the local authority building is accessed only via a flight of stairs". By contrast the medical model focuses on impairment as being the cause of limited opportunities and life chances. The social model not only provides the foundation for the modern disability rights movement, but also provides the basic premise for any law prohibiting disability discrimination.

9. The present definition of disability can cause considerable difficulties for Claimants. In particular, where it is unclear whether or not an individual meets the definition - and this is relatively common - they will be "put to proof", which will usually mean an extensive witness statement explaining what they can and cannot do; an expert medical report; and a hearing at which the claimant will be cross examined. This is a costly and often distressing experience.

10. In addition, it can also cause difficulties for Respondents. Very often Respondents are put to unnecessary expense because of the need for such a hearing. Both sides incur medical expert expenses which establish the nature of the impairment and the Respondent is then left with a decision as to cross examining on whether the impairment has more than minor or trivial adverse effects on the Claimant's ability to carry out normal day to day activities. However that evidence very often relates to matters that take place in the home, to which the Employer has no access. Thus the parties may incur medical expenses and the hearing is aborted on concession by the employer on sight of the Claimant's evidence on this point. The net effect is to draw out proceedings and to increase the stress of the proceedings as described.

11. The definition is particularly problematic for people with mental health issues, given the requirement that the effects of an impairment must be "long term" (i.e. likely to last or have lasted for more than 12 months). If, for example, an individual has depression which has lasted for only two months but an employer refuses to employ/promote them because of this, there is nothing that they can do under the current Act.

12. There is also the difficulty of predicting the likelihood of duration. This must be judged as at the time of the act of discrimination. In many mental health cases it is simply not possible to say at that time what the duration is likely to be. The Directive (post Coleman) would suggest that the characteristic of disability plays a role if in fact the person's condition is long term. That has nothing to do with whether it is possible to predict that it is likely to last a certain period of time. However the current law (and its interpretation) suggests that these predictive factors are relevant.

13. It is our view that the Act should reflect the social model of disability, focussing not on the individual's impairment but on the reasons for treatment and/or barriers placed in the way of disabled people.

14. We would suggest that the definition of disability should be altered so that protection from discrimination is afforded to everyone who has (or has had or is perceived to have) an impairment without requiring the effects of that impairment to be substantial or long term. . This would ensure that the focus of any tribunal or court hearing is upon the treatment afforded to the claimant, saving costs and time.

How can the Equality Bill open up opportunities in employment, particularly for disabled people, carers and pensioners

15. The equality bill provides an opportunity to positively encourage the employment of disabled people, carers and pensioners, not merely by tackling the difficulties with the current legislation, but also by expanding on opportunities for positive action; by creating an effective single equality duty; and by full and effective use of procurement. These issues are expanded upon below.

How should the Equality Bill respond to the decision in the Malcolm case in respect of disability rights in employment?

16. The decision in London Borough of Lewisham v Malcolm ([2008] 3 WLR 194) has had a major impact on claims brought under the Act.

17. Whilst it is true that the majority if not all employment cases involve a failure to make reasonable adjustments; and that this together with the expanded definition of harassment means that the legal effects in employment are likely to be limited, the Malcolm decision nevertheless causes difficulties in the employment arena.

18. Whilst there are cogent legal arguments as to why the decision should not apply in the employment context, we are nevertheless aware of claims of disability related discrimination having to be abandoned as tribunals apply the decision in the employment context. This is particularly problematic in recruitment cases, where the duty to make adjustments, which would otherwise be relied upon, is only applicable where an employer knows or ought reasonably to be expected to know, that an individual is disabled and is likely to be affected in that way. In such cases, there will not be a duty to make reasonable adjustments and so there will be no basis on which an individual can bring a claim.

19. In addition to the practical effect in the employment tribunal, it is also the case that the principle of disability related discrimination placed the obligation on an employer to justify any treatment related to a disabled person's disability. This was a very effective tool for claimants and trades unions to use in changing the behaviour of employers towards disabled employees.

20. Now, unless a claim falls within the narrow confines of direct discrimination, the onus is on the employee to identify reasonable adjustments that might be made - i.e. a provision criterion or practice placing them at a substantial disadvantage.

21. This shift may affect the behavioural changes of employers that the DDA has undoubtedly contributed to.

22. There are two further issues to be considered in relation to Malcolm: firstly, the effect it has had upon the government's compliance - or otherwise - with the Employment Framework Directive; and secondly, what should ideally be done to remedy its effects.

23. The provisions of the DDA in its current form as it relates to employment are intended to comply with Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation. This was made explicit in the process that lead up to the amendments made by the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (S.I. 2003 No. 1673): see the explanatory note.

24. The Directive does not have a concept of disability related discrimination. However it does have a concept of indirect discrimination.

25. The view taken by the Secretary of State when making the 2003 regulations was that by having a provision to be understood in the sense of Novacold and a reasonable adjustment provision it was not necessary to also have any provision dealing with indirect discrimination.

26. If the reasoning in Malcolm is applied in the case of section 3A - the employment discrimination provision relating to disability related less favourable treatment - the basic premise for not introducing a concept of indirect discrimination into the DDA has disappeared.

27. The second issue is that of what to do to ensure that the parliamentary intention as expressed in Baroness Hale's opinion in the Lords in Malcolm is fully represented in any future legislation.

28. Whilst indirect discrimination is an option, and the government has just released a consultation on this as the solution, which we have not had any time to consider, it will in our view cause difficulties in the context of disability for three reasons:

(i) its possible inability to address individual, one off acts (despite Starmer v British Airways [2005] IRLR 862, there is no guarantee that any future decision would retain this approach)

(ii) the potential for confusion, particularly in relation to the pool for comparison which must be identified for a claim of indirect discrimination to succeed. Whilst in the "modern" version of indirect discrimination statistical comparison is not required, there is nevertheless a requirement to show a disparate impact, which may cause difficulties for disabled people who experience the effects of an impairment in different ways. In addition, indirect discrimination is a very complicated, time consuming and expensive basis on which to bring a claim

(iii) whilst knowledge should not be an issue in indirect discrimination, the Lords in Malcolm expressed very strong views about knowledge being necessary, and it is unclear what approach the courts would take to knowledge in the context of indirect disability discrimination

29. For these reasons, we would suggest that unless indirect discrimination can address these three potential weaknesses, a form of disability discrimination which prohibits treatment based on the consequences of disability, putting the onus upon an employer (and others) to justify their treatment of a disabled person, should be adopted. This could be based on the existing wording of disability related less favourable treatment, but with the removal of the comparator, and subject to objective justification.

How should the government improve protection of carers in equality legislation, following the decision in the Coleman case

30. Whilst a decision is awaited in Coleman as to whether or not the DDA can be read so as to be compatible with the decision of the European Court of Justice, it is our view that whatever the outcome, the legislation should make coverage of discrimination by association explicit.

31. In addition, the legislation should also cover those who are treated less favourably because of a perception that they are disabled. This is in order to give full effect to the words of the Directive which prohibits less favourable treatment "on grounds of" disability.

We would also point out, however, that the decision in Coleman means only that direct discrimination and harassment based on association with a disabled person must be prohibited under domestic legislation. It does not address the matter of flexible working - and in particular, it does not provide carers with a right to reasonable accommodation, which may be necessary in order to ensure their effective participation in the workplace.

How could the duties in goods facilities and services of the DDA be built on to deliver systemic changes

32. The goods facilities and services provisions - and in particular, the fact that the duty to make reasonable adjustments is anticipatory in nature - have the potential to drastically improve the lives and social participation of disabled people. The Court of Appeal decisions in Roads v Central Trains Ltd (2004] EWCA Civ 1541) and Ross v Ryanair Ltd & Anor ([2004] EWCA Civ 1751) emphasised the importance of these duties and also the aim of the Act itself.

33. However, it is not difficult to see on any high street the number of service providers who have failed to comply with the reasonable adjustment duty specifically in relation to physical features. One of the reasons for this must lie in the fact that - particularly in comparison to employment cases - very few goods facilities and services cases have been brought and this in our view relates in part to the venue for such claims (on which , see below).

34. In any event, relying upon individuals to bring about systemic change through individual litigation places a heavy burden upon disabled people who, in many instances, experience discrimination on a daily basis which it would be time consuming and exhausting to challenge on each and every occasion.

35. Whilst the disability equality duty should address this to a great extent in the public sector, there is no such obligation at present in the private sector.

36. It is our view that consideration should be given to a radical reconsideration of the duty to make adjustments in relation to physical features. In particular, accessibility standards, such as those drafted under the Americans with Disabilities Act, enforceable by a local authority inspectorate, may provide greater certainty and remove the burden of ensuring an accessible environment from individual disabled people.

37. In addition, there should be greater harmonisation between the concepts used in employment and those used in goods and services - in particular, the trigger points for the duty to make reasonable adjustments.

What is the draft EU Directive in GFS proposing and what are the implications for transposition of the new EU Directive for UK law

38. The Directive will as presently drafted have a number of significant implications for domestic legislation. In particular, it will necessitate

ˇ the introduction of the concept of indirect discrimination to disability discrimination legislation

ˇ the introduction of a concept of harassment for a reason relating to disability in services and premises

ˇ changes to the housing provisions (expanding the duty to make reasonable adjustments);

ˇ expansion of the duty to make adjustments in relation to transport and education

ˇ shifting of the burden of proof

Is the draft EU Directive welcomed?

39. The draft Directive is extremely welcome and it is particularly positive that it is a single Directive extending to all the grounds, and not disability alone, as was mooted at one point. It is important that there is consistency and coverage across all the discrimination grounds.

40. Whilst it is extremely positive that there will be some consistency of approach across Europe in relation to disability discrimination, there are nevertheless some areas of the Directive which are of concern.

41. These are in particular;

ˇ no addressing of the definition of disability

ˇ the relatively broad justification for discrimination by insurance providers

ˇ no requirement to provide alternative methods of service

ˇ effect of Article 4(3) that the Directive is without prejudice to European community and domestic rules covering goods and services

ˇ no mention of accessibility of manufactured goods

42. In addition, there is no protection for multiple discrimination, a subject to which we will return below.

 

 

Does the Equality Bill incorporate the provisions of the draft Directive?

43. There is very little detail in the public domain as to what the government is intending to address in the bill and it is not clear at present to what extent the equality bill will incorporate the provisions of the draft Directive. It is clear though that in relation to disability the government is not proposing to introduce at present provisions which would transpose the draft Directive as it stands.

How can it be made easier for disabled people, carers and pensioners to bring and pursue cases in GFS?

44. There is a paucity of goods and services cases litigated. This is in our view not surprising, given the procedural difficulties which bringing such a case in the county court give rise to. In particular, cost at the outset for issuing a case; the fee attached to an allocation questionnaire; the possibility of a claim being listed in the fast or multi-track, meaning that the Claimant risks the possibility of considerable costs being awarded if they do not succeed in their claim.

45. The Disability Rights Commission prepared detailed submissions on such claims which we endorse. It is our view that an equality tribunal, 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 the county court where appropriate) would be better suited to hearing such cases.

46. Claims brought under the discrimination provisions are not merely personal actions, but contribute to eradicating discrimination which society has indicated it should not tolerate. As such they are qualitatively different from other claims brought in the county court, such as consumer cases. For this reason, they should be treated differently, and steps take to ensure their effective enforcement.

Should discrimination by association extent to GFS?

47. We have certainly had experience of having to advise on situations where individuals have been subjected to less favourable treatment because they are with a disabled person. At present, they have no remedy.

48. Should the draft Directive be finalised, there would be a need for explicit protection against discrimination by association.

49. There are in any event sound reasons for such treatment being prohibited by the legislation.

50. As was said in the Advocate General's opinion in Coleman "directly targeting a person who has a particular characteristic is not the only way of discriminating against him or her; there are other, more subtle and less obvious ways of doing so. One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them but third persons who are closely associated with them and do not themselves belong to the group. A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation, as they too, affect the persons belonging to suspect classifications"

51. In the interests of consistency coherence and equality we would recommend that discrimination on the basis of association - and indeed perception - be prohibited under the goods, facilities and premises provisions.

What are the implications of the Malcolm case and how should the equality bill take these into account

52. It is our view that any changes to remedy the effects of Malcolm must be implemented across the DDA. Whilst there are reasons for distinguishing Malcolm in the context of employment (and indeed post-16 education) it is very difficult because of the drafting of the provisions to make such cogent arguments in relation to goods facilities and services.

53. In addition, in premises it is perfectly clear that courts are bound by the Malcolm decision, and, as the duty to make adjustments is much more restrictive in premises, there are not the same options for mitigating the effects of Malcolm as there are in employment, goods and services and education.

54. It is our experience that premises cases have had to be abandoned in light of Malcolm - for example, where a disabled person has failed to pay rent because their depression has resulted in their failing to complete a housing benefit form, then they will no longer have a basis on which to resist any possession proceedings brought against them on this basis.

55. It is important, however, to ensure that objective justification applies in order to avoid the situation raised in Malcolm, where the justification provisions were so restrictive that landlords were left with no means of evicting an individual, pre-Malcolm, where, for example, arrears arose for a reason relating to disability.

How effective are the provisions in Part 3 of the DDA on buying selling and letting

56. Apart from the issues raised by Malcolm, we have limited experience of the duty to make adjustments in the housing field. And in fact we are unaware of these provisions having been used widely at all.

57. It is clear however that they are restrictive when compared to the expansive reasonable adjustment provisions in relation to goods facilities and services.

58. Of particular note is the fact that there is no anticipatory duty to make adjustments. In addition, there must be an individual request for the adjustment, and specific other conditions must apply before the duty is owed.

59. We would suggest that, again in the interests of consistency and in order to make the provisions as effective as possible, the premises duties to make reasonable adjustments should be made anticipatory in nature. Given that the steps to be taken are limited in any event by what is "reasonable" this should not impose an undue burden upon landlords and would result in more effective removal of barriers to disabled people's participation.

60. In addition, having similar duties in this area to those in goods facilities and services would make the law easier to apply and for premises providers to understand.

How could a disability equality duty in the public sector be built upon within a Single Equality Duty? Is a single duty desirable? Will there be unintended consequences for disabled people or disability rights?

61. The equality duties have been used as the basis to challenge a number of public authority decisions, and the courts have been particularly receptive to arguments about their nature. In the context of disability, for example, the case of R (on the application of Chavda and Others) v Harrow London Borough Council ([2007] EWHC 3064) was particularly useful in reinforcing the need for local authority councillors to be aware of the duties and to ensure their application when making decisions about budgets for social care.

62. There are at present 3 different equality duties and with the intention to introduce duties in respect of religion or belief, age and sexual orientation, it is important that there is a strong, coherent framework for these duties. This is particularly the case with the specific duties which, whilst extremely important in providing a "plan" for what an authority is to do, have confused some local authorities because of their differences.

63. It is important, however, that the key elements of a disability equality duty are preserved within a single duty - in particular, the duty to have due regard to the need to take steps to take account of disabled people's disabilities, even where that involves treating them more favourably. This has been particularly effective in reinforcing the reach of the reasonable adjustment duty, and in promoting substantive, as opposed to formal, equality.

64. The other elements of the disability equality duty - equally important - i.e. harassment, public participation and positive attitudes are equally important as regards the other equality grounds, and these should be reflected in a single duty.

65. In addition, a single duty would need to provide guidance on how multiple discrimination should be considered. Guidance would be needed on how to avoid a hierarchy of equalities, e.g. with age and disability at the bottom because they are capable of greater justification.

How could procurement be made a more effective lever for equality outcomes?

66. The experience under the Race Relations Act demonstrates that more is needed generally to ensure that public authorities, especially central government departments, fully embrace and implement their positive duty to promote equality. In particular, despite comprehensive guidance prepared by the CRE in 2003, and subsequently by the DRC, and EOC, that illustrated how at each stage of the procurement process, a public authority should, and could, while complying in full with the requirements of EU law, take their race equality duty into account, there is very little evidence of this occurring. CRE guidance illustrated that the race equality duty was relevant not only to contracts involving the provision of services to the public but also internal services and purchases of certain types of goods and work. Critical, and of general concern, are the ways in which, through procurement, a public authority can secure improvements in equality of opportunity within the contractors workforce.

In the absence of (or even alongside) a private sector equality duty, public procurement is a critical lever for the promotion of equality within the private sector. Whilst the general duty as framed in the RRA, the DDA and the Equality Act 2006 should be sufficient to ensure that the equality duty is exercised in relation to procurement, we would recommend that the new legislation should make this explicit. This appears to be necessary to overcome the hesitation by public authorities, which, in turn, is based in part on the extremely cautious approach of the Office of Government Commerce (OGC). A clear statutory duty to apply the equality duty to public procurement should overcome the problems that have arisen due to the reluctance of the OGC to recognise procurement as a "function" of public authorities.

How does disability fit in a single equality act?

67. A single equality act harmonising and "levelling up" provision across the grounds is clearly desirable. It is important that particular attention is paid to the inconsistencies in current disability legislation - the differing trigger points for the duty to make reasonable adjustments and the different approaches to justification being just two examples - and that these are addressed. It is also important that where necessary - for example, in relation to disability-related discrimination - a different approach is taken - harmonisation should not come at the expense of effective disability legislation.

 

Should the social model or medical model apply for disability?

68. We have set out above, in our introduction and also in relation to the definition of disability, why it is our view that the social model of disability should underpin any legislation prohibiting disability discrimination.

Multiple/intersection discrimination

69. Whilst a question has not been raised as to this, it is nevertheless important in our view to address a current gap in the legislation in relation to what is often termed "multiple discrimination".

70. This relates to the impact of the current provisions on people who suffer from discrimination on more than one ground. Such discrimination may be additive (a disabled woman whose employer discriminates on the grounds of sex and disability will be doubly disadvantaged by her combined disability and sex), or it may be intersectional (a disabled woman whose employer discriminates only against disabled women, but not against non-disabled women or disabled men will be uniquely disadvantaged by her combined disability and sex). Multiple discrimination (whether of the additive or intersectional variety) can be experienced by disabled women, elderly men or women, Asian women, Black men, lesbian women, and by those defined by reference to extensive grounds (Muslim women of South Asian extraction, for example, or British born young Black men).

11. Additive discrimination is open to challenge under current domestic law as long as those subject to it can fulfil the normal standards of proof in relation to each of the grounds of discrimination which they allege. But domestic law fails to address multiple discrimination when it takes the intersectional form. In Bahl v Law Society, for example, the claimant (an Asian woman) alleged that she had been discriminated against as a Black woman. A tribunal, finding in her favour, declared that she had been treated less favourably as a Black woman. (She was, in fact, the first Law Society office holder who was not both white and male.) The Employment Appeal Tribunal ([2003] IRLR 640) overturned the tribunal's decision, Elias J ruling that the tribunal erred in law 'in failing to distinguish between the elements of alleged race and sex discrimination'. The Court of Appeal ([2004] IRLR 799) upheld the EAT's approach, ruling that the tribunal had failed to identify what evidence goes to support a finding of race discrimination and what evidence goes to support a finding of sex discrimination. It would be surprising if the evidence for each form of discrimination was the same... In our judgment, it was necessary for the [employment tribunal] to find the primary facts in relation to each type of discrimination against each alleged discriminator and then to explain why it was making the inference which it did in favour of Dr. Bahl on whom lay the burden of proving her case.

12. Had Dr Bahl been either white or male, the first instance decision would have been immune from interference given the tribunal's finding of less favourable treatment in relation to a number of incidents and the inference permitted from such treatment and a difference in sex or (but not, it appears, and) race. As it was, Dr Bahl's claim had to be made by reference to white women and Black male comparators (actual or hypothetical) and could (in the former case) readily be defeated by evidence relating to the employer's non-discriminatory treatment of either group.[1] Such evidence would not, of course, disprove discrimination against Black women as Black women.

71. Similar issues arise in relation to indirect discrimination.

72. The Single equality act should ensure that action can be taken on the basis of a combination of prohibited grounds i.e on intersectional discrimination.

 

November 2008



[1] Though note that on the facts of the instant case there would have been no actual women or Black comparators.