41. Supplementary memorandum submitted by Employers' Forum on Disability
EFD is the authoritative voice on disability as it affects business, representing over 400 major employers in the UK. EFD works closely with disabled people, government and other stakeholders, sharing best practice to make it easier to employ disabled people and serve disabled customers.
EFD's mission is to mobilise the power of its members to promote the economic and social inclusion of disabled people. For 17 years EFD has been successful in driving forward employer engagement and sets the standard by which business and public sector measure their performance on all aspects of disability.
How does disability fit within a single Equality Act? What lessons should the Government learn from the Malcolm case? Is indirect discrimination the appropriate concept to include, or would it be better to have a modified version of the disability related discrimination concept?
Treating everyone the same does not mean that everyone is treated fairly. Disability needs different wording to the other strands. We understand the Government's wish to harmonise and simplify the law. However to take this to mean that there should be the same wording for all the strands is too simplistic.
Harmonisation and simplification should be about the spirit of the law not the letter. The aim should be for equality of protection for all disadvantaged groups. This may mean having to have different language for different groups.
The reasonable adjustment provisions which are unique to disability are an example of how different strand provisions and language is needed for different discrimination strands. Reasonable adjustments could be viewed as more favourable treatment but in fact simply level the playing field for disabled people and remove obstacles to their economic and social inclusion in society. As we understand it, there is no suggestion that the Equality Bill will remove the reasonable adjustments provisions.
Disability discrimination is the only strand which is asymmetric i.e. only disabled people have protection under it. This is unlike the other strands where people of all races, all religions or none, every age, sexuality and gender are protected. It is therefore possible for employers to positively discriminate in favour of disabled people if they wish.
In the Malcolm case the House of Lords failed to recognise some of the unique aspects of the DDA. The decision effectively removed disabled people's rights to bring claims for less favourable treatment for a reason relating to their disability and has left them only with direct discrimination and reasonable adjustments claims. The DDA did not contain indirect discrimination provisions because that would not have been as effective in addressing the discrimination disabled people encounter as the combination of less favourable treatment for a reason relating to disability (as interpreted by the Court of Appeal in Clark v Novacold) and the duty to make reasonable adjustments.
Indirect discrimination has to be included in the Equality Bill if the EU Directive is passed. We welcome that it will address systemic barriers faced by groups of disabled people, for example people with sensory or mobility impairments
However, indirect discrimination will not plug the gaps left by the Malcolm case. We think therefore that the Equality Bill should re-introduce less favourable treatment for a reason related to disability but without the need for a comparator as well as introducing indirect discrimination into disability legislation.
Do you think that implementing the Coleman case (extending coverage to association and possibly perception of disability) could help move the current definition more to the social model approach to disability?
We welcome that the Coleman case means that people associated with disabled people will now have protection from direct discrimination and harassment.
We understand that the Equality Bill will also extend this protection to people who are perceived to be disabled but are not in fact disabled.
This too is welcome and fits with the social model of disability i.e. that the focus should be on whether or not people have been treated badly/unfairly and not on whether they are entitled to fair treatment because they meet a specific definition of disability.
What are your views on the default retirement age? Should it be scrapped?
There is a correlation between age and disability. The focus should be on making reasonable adjustments to enable people of any age to work to the best of their ability if they wish to do so.
You state that the division of responsibilities within government departments is confusing and undermines the effectiveness of any single equality legislation. Can you expand on that? How should this be addressed?
We believe there is confusion in government about how disability sits in relation to the equality agenda. We are particularly concerned that the separation between GEO and ODI will mean that disability issues will not be adequately understood or dealt with within equality legislation. This fear is particularly acute given that GEO have a small staff team and thus limited capacity to build up expertise across all diversity strand areas.
A good example of this is the ODI consultation on the Malcolm case. This consultation was led by ODI. However, in discussion with ODI it was apparent that the consultation responses were simply informing ODI's work with Government Equalities Office on the Equality Bill. This division makes it difficult for employers to represent their views to relevant officials and Ministers. It also means that there are conflicting messages going to employers. There appear to be mixed messages emerging from DWP, Government Equalities Office and BERR about the equality agenda. Disability is variously positioned as an issue about equality, talent and business performance, welfare reform or a source of additional regulatory or financial burdens on business. This is unhelpful when trying to promote change within employers.
It would send a powerful message to the nation were the government to appoint a Minister for Equality and Human Rights with a seat at the cabinet table. Currently, questions about disability are referred from the Government Equalities Office to the Office for Disability Issues, yet these questions are often about the Equality Bill, which is the responsibility of the Government Equalities Office. The flow of information is extremely unhelpful and gives the impression that understanding of disability as it impacts on business is not well understood within government.