Memorandum submitted by The Law Society

The Law Society is the representative body for more than 100,000 solicitors in England and Wales ("the Society"). The Society negotiates on behalf of the profession, and lobbies regulators, government and others.

 

This response has been prepared by the Society's Employment Law Committee and its Mental Health and Disability Committee. Both committees are made up of senior and specialist lawyers from across the country who volunteer their time. Employment Law Committee members provide advice and representation to employers and employees through practice in City and regional firms, local government, industry, trade unions and law centres. Some Committee members are part-time employment judges. The diversity of the Committee's composition is intentional. The Mental Health and Disability Committee is made up of lawyers practising in the fields of disability discrimination, mental health, mental capacity and community care on both the claimant and respondent side and also has members from other professions.

 

This is a summary rather than a detailed response outlining the Law Society's views on the decisions handed down in the Coleman[1] and Malcolm[2] cases; discrimination by association in Employment and Goods Facilities, and Services; the introduction of a Single Equality Duty; and Private Sector commitment in line with our support for the use of public procurement to improve transparency and equality in the private sector.

Equality in Employment

The Law Society does not consider that any government department has been particularly successful in reducing inequality in employment. On a day-to-day basis, people with disabilities continue to face significant discrimination in employment.

 

The Law Society considers that the Equality Bill should include provisions to reverse the decision handed down in the Malcolm case. This has had the effects of narrowly defining the comparison for disability related discrimination in premises cases so that the test for disability-related discrimination is now effectively that for direct discrimination, as well as requiring that a disability is known about for discrimination to have taken place. If the decision is not reversed by the Equality Bill, the Law Society nevertheless considers that the decision should not apply to employment, education or other goods, facilities and services cases.

 

Following the decision handed down in the Coleman case, the Law Society believes that there should be increased protection for discrimination against carers (or indeed in respect of any discrimination by association) by amending the domestic legislation such that it reflects the wording of the Equal Treatment Directive, which prohibits discrimination by association.

 

The Law Society considers that many employers react to requests for flexible working by (1) assuming that the business cannot support alternatives to full time work; and (2) subsequently looking for the business needs to justify this position. In light of the Coleman case, it would be valuable to facilitate increased awareness on the part of employers of the possibility of a Disability Discrimination Act 1995 claim by a carer of a disabled person whose flexible working request is rejected based on an argument of unlawful discrimination on grounds of association with a disabled person.

 

 

Further, given the effects on Part 4 of the Disability Discrimination Act 1995 as amended of the UK's interpretation of the European Employment Framework Directive 2000/78/EC, discrimination by association should be extended to carers who are students in Further and Higher education.

Equality in Goods, Facilities and Services

We are not clear whether the committee is including the provision of education under this heading as it does not appear elsewhere.

 

In terms of making it easier for a range of people to pursue goods, facilities and service cases, The Law Society considers that it would be best to create an equality tribunal which could hear GFS and education cases and cases on multiple discrimination grounds, subject to the Tribunal judges having the necessary specialist training. Taking a case in the county court is extremely daunting for most people, given the complexity of the county court rules. Comprehensive public funding, including funding for representation at tribunals, is also a key factor for effective access to justice.

 

The Law Society considers that discrimination by association should be extended to GFS. Please see our comments under Equality in Employment on the Malcolm case.

 

The Law Society welcomes the proposal for a Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation.

The Public Sector Equality Duty

The Law Society welcomes the introduction of a Single Equality Duty. However, it recommends caution that if too broad, such a duty will not take into consideration the different needs of individual groups. We think statutory guidance should emphasise the need to address each strand individually and should strongly discourage a "one size fits all" approach.

Private Sector commitment and support, guidance, advice and information for employers

We support the use of public procurement to improve transparency and equality in the private sector.

Single Equality Act

The Law Society believes that the 'social model' should apply to the definition of disability in the single Equality Act as this is the model adopted by the Convention on the Rights of Persons with Disabilities and used by the Equality and Human Rights Commission. The ECHR should continue to have formal investigation and enforcement powers.

 

November 2008



[1] S. Coleman v Attridge Law & Stephen Law - C-303/06

[2] Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] UKHL 43