Memorandum submitted by Equality and Human Rights Commission

Introduction

1 The Equality and Human Rights Commission (the Commission) is an independent advocate for equality and human rights in Britain. The Commission aims to reduce inequality, eliminate discrimination, strengthen good relations between people, and promote and protect human rights.

2 The Commission incorporates a statutory decision-making Disability Committee with extensive powers.

3 In September 2008 the Commission submitted its application to gain 'A' status National Human Rights Institution accreditation. Achieving 'A' status will allow the Commission to participate actively and fully in the Human Rights Council of the United Nations, including the right to make written statements relevant to the Council's programme of work, as well as making oral interventions in periodic meetings of the Human Rights Council and UN Treaty examinations.

4 The Commission has accepted the UK Government's proposed designation as an 'independent mechanism' in Britain, tasking the Commission with 'promoting, protecting and monitoring' implementation of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) in accordance with Article 33 of CRPD.

5 Securing a Single Equality Bill which improves upon the provisions of the Disability Discrimination Act is a central priority for the Commission in carrying out this role. Equally, the Commission will be seeking to ensure that the Bill is effective in promoting equality for older people and for those who may experience discrimination or disadvantage on grounds of their association with a disabled person, including carers.

6 In this initial written submission, the Commission has included as much information as possible concerning its position in response to the Inquiry Terms of Reference. However, on a number of the questions asked in the Terms of Reference the Commission is still evolving its detailed position, or awaiting Government consultation. The Committee Terms of Reference also asked about the quality of the Department for Work and Pensions Secretary of State report. The Secretary of State reports are due to published on 1st December 2008 and therefore the Commission has been unable to comment at this time. On these matters, the Commission would welcome the opportunity to provide further written or oral evidence.

The Equality and Human Rights Commission's aspirations for the Equality Bill

7 The Single Equality Bill is an opportunity to transform the patchwork of law that has grown up over 40 years into a coherent set of clear, transparent and practical proposals. The Commission believes the Equality Bill should:

provide a better and more simple framework for equality in a way that systematically promotes the greatest fairness for all;

 

contain a single, outcome-focused public duty requiring public authorities to promote equality of opportunity and good relations between different groups, and to eliminate unlawful discrimination and harassment;

 

explicitly require existing public sector inspectorates to monitor the way in which equality is implemented by public authorities;

 

place a duty on cabinet ministers, the Welsh Assembly and the Scottish Government to report on progress against national targets for greater fairness;

 

ensure public authorities use procurement processes to require every organisation providing public services and paid with public money to demonstrate a commitment to fairness;

 

be drafted as clearly as possible and underpinned by 'real-life' practical guidance, to ensure that every business can understand and implement the law more effectively;

 

ensure transparency enabling shareholders, consumers, prospective employees and the Commission to tell if companies are doing the right thing, and hold them to account;

 

give the Commission a simpler and more proportionate tool to promote equality in the private sector alongside its existing inquiry and investigative powers; and

 

effectively close the gap in protection from disability discrimination left by the Malcolm judgement.

 

Simplifying the law - adopting a new definition of disability

8 The Commission believed that the Discrimination Law Review Green Paper failed to address the current inadequacies in the Disability Discrimination Act's (DDA) definition of disability, proposing only minimal change relating to removing the current list of 'capacities'. Whilst the Commission is not opposed to removing the list of capacities, this is not - in our view - going to assist particularly in removing the hurdles that disabled people face in bringing a claim of discrimination and in meeting the definition of disability. Changing the definition of disability completely, as outlined below, would lead to greater justice for disabled people.

9 If these capacities were to be removed, it is vital that detailed guidance is produced to provide a steer to courts and tribunals as to what a "normal day to day activity" is. In particular, the Government needs to ensure that this proposed change does not undermine existing case law, as this would be a recipe for renewed confusion.

10 The current definition is extremely complex, save in certain narrowly defined circumstances; it requires proof that an individual has an impairment which has a substantial and long term adverse impact on their ability to carry out day to day activities.

11 In June 2006 the Disability Rights Commission (DRC) recommended to the Government that the DDA's definition of disability should be changed to one which gives protection from discrimination to everyone who has (or has had) an impairment without requiring the effects of that impairment to be substantial or long-term. The DRC's recommendation for change followed a request from the cross-party Parliamentary Scrutiny Committee on the Draft Disability Discrimination Bill for the DRC to review the definition. The Committee argued that:

" if the Government are to achieve their aim of comprehensive, enforceable civil rights for disabled people against discrimination in society or at work then the current inadequacies in the DDA definition must be addressed. Many of the deficiencies...would, we believe, be overcome by focusing disability anti-discrimination legislation on the act of discrimination, and not the extent of the impairment."[1]

12 The DRC's public consultation revealed strong support for such a shift in approach from a range of well-informed stakeholders. The Equality and Human Rights Commission fully supports this proposed change. The proposed new definition would move away from protecting a group of 'disabled' people and instead protect anyone who experiences discrimination on the grounds of an impairment. Such a change would have many positive benefits. It would:

 

Simplify the law, making it much easier for everyone to understand when someone is entitled to protection from discrimination.

The present definition creates uncertainty. In many cases the only way to definitively determine whether a person is disabled is to go to tribunal. Merely because previous cases have established that someone with, for example, asthma, migraine, or repetitive strain injury, is within the DDA definition, does not mean that other people with this condition will similarly be protected by the law.

 

Encourage a more systemic approach to change and to the removal of barriers, bringing the law into alignment with best practice.

 

For employees who develop impairments or health conditions, good practice is to respond to any problems as soon as they become apparent, not, for example, to allow lengthy periods of sick leave to elapse before enquiring whether or not steps can be taken to enable an employee to return to work. In such cases, waiting until it is clear that an employee meets the DDA definition (by having an impairment which has a substantial adverse impact for 12 months or more) before putting in place reasonable adjustments undermines the chances of a successful outcome.

 

Ensure clear protection for all those who need it.

 

Currently there is no protection for people with short term but severe conditions, or those with long term conditions which do not have a substantial adverse impact on day to day activities. In one DRC case a man who had attempted suicide, and had his job offer withdrawn as a result, was held not to be disabled because he could not establish that the substantial effects of his depression were likely to last 12 months or more.[2]

 

Shift the focus of attention from the medical condition of an individual to a consideration of whether or not discrimination is occurring and the need or otherwise for a reasonable adjustment and whether treatment is fair.

 

For example, Mrs Gittins was a nurse who was denied employment on the basis that she had Bulimia Nervosa. The hospital trust concerned did not seek to justify their decision, but rather they successfully argue that since Mrs Gittins' impairment did not constitute a disability under the DDA, she was not legally entitled to challenge their decision.[3] Under our proposed change, the focus would have been on whether the trust could have justified their refusal to employ her because of the risks associated with her impairment.

 

Remove substantial barriers to individual access to justice.

 

The present definition creates a significant barrier to justice, even for those who fall within it. An authoritative report on the operation of the DDA concluded: "Defendants in disability discrimination litigation have every strategic reason and encouragement to challenge the status of the claimant as a disabled person. This not only adds to the potential length and cost of litigation, but has a considerable psychological effect upon the willingness of a disabled person to mount or to continue litigation under the 1995 Act."[4]

 

Harmonising and simplifying the law - adopting a single test of objective justification

13 The Commission agrees with Government that there should be a single test of objective justification for disability discrimination in employment and vocational training, goods, facilities and services, housing, education, private clubs, public functions and transport.

14 This will simplify the law in a way which strengthens protection against discrimination. Currently less favourable treatment in the areas of employment and education can be justified if the reason for the treatment is "material to the circumstances of the particular case and substantial". In the areas of goods and services, housing, private clubs, public functions and transport, the current law provides for a limited number of justifications both for less favourable treatment and for failure to make a reasonable adjustment where a reasonable opinion is held that one of the justifications applies. This is the case even if it can be shown that the belief was mistaken at the time.

15 The Discrimination Law Review Green Paper proposed replacing all the different justification tests which currently apply in relation to disability discrimination with the one that applies to indirect discrimination in relation to other grounds. This is that the conduct in question is a proportionate means of achieving a legitimate aim.

16 In employment, education and vocational training, an objective justification test would provide a higher threshold than the current test. Under the DDA at present it is simply too easy for employers to evade responsibility for what would otherwise constitute discriminatory actions. In Heinz v Kenrick(2000 IRLR144) the EAT stated that the threshold for the justification is "very low", "substantial" meaning "more than minor or trivial" (as specified in the statutory Code of Practice). They said: "This is not a conclusion we reach with enthusiasm but as the language of the domestic statute is clear, the remedy for the lowness of the threshold, if any is required, lies in the hands of the legislature not of the courts."

17 This issue has become of even more concern since the Court of Appeal decision in Jones v Post Office ([2001] IRLR384). That case involved a post office driver with diabetes who had won his claim of disability discrimination in the employment tribunal. The Court of Appeal overturned the decision, ruling that a tribunal is not entitled to find that the employer's reason was not material or substantial merely because, in their view, the medical evidence relied on by the employers was wrong.

18 The Court of Appeal stated that under the DDA, tribunals do not have a general power to decide whether the decision was correct, but are confined to assessing whether there was evidence on the basis of which the employer could properly take the decision.

19 The practical impact of the Jones decision is that disabled people have been prevented from bringing claims; have had to settle claims; or have had to withdraw claims which prior to Jones would have proceeded.

20 In areas outside employment, a test of objective justification, whilst widening the circumstances in which discrimination can be justified, would also make it harder to justify discrimination.

21 We believe that this will provide both simpler and, in most legal situations, tougher protection from discrimination.

22 The effect would be to widen the scope for justification in relation to discrimination in goods, facilities and services, but tighten the level of scrutiny. The Commission believes that this would be helpful. The consequences of the relatively narrow scope for justifying less favourable treatment in relation to goods, services and housing became all too apparent in the Malcolm v Lewisham Case, the effect of which was for the House of Lords to overturn established case law and in effect remove the provision of 'Disability Related Discrimination' from the Disability Discrimination Act.

23 It is right that those who refuse service, evict or provide a worse treatment to disabled people for a reason related to their disability should be put to a strict standard of proof. It is also correct that, given the breadth of the either a 'less favourable treatment concept' or indirect discrimination provision (which go beyond merely requiring identical treatment) that a range of other factors may need to be balanced against the interests of the disabled person, such as the supply of social housing.

24 The Commission proposes that rather than the proposed wording in the Discrimination Law Review Green Paper ('cannot show to be a proportionate means of achieving a legitimate aim'') it would be far better if the statute itself stated that justification would only be possible where the treatment in question is 'objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary'. (This reflects the wording of EU Directives relevant to other forms of discrimination and should be the wording for services, clubs and premises justifications in relation to all forms of discrimination.) Necessity provides a high standard. If discriminatory provisions, criteria or practices are to be permitted this should only be on the basis that they are 'necessary' to the operation of the business or service not merely that they are seen to be 'a proportionate means of achieving a legitimate aim'. The concern is that service providers will simply trot out broad legitimate aims, such as "health and safety", "maintaining profitability" "responding to customer demand" etc and that potential claimants will be deterred from challenging this because of the vagueness of the disproportionate means test, whereas now the defence the service provider is relying on has to be pinpointed.

 

Harmonising and simplifying the law - a single threshold for the point at which the duty to make adjustments is triggered

25 The Commission welcomes the Government's intention to establish a single threshold for the point at which the duty to make adjustments is triggered.

26 The duty to make reasonable adjustments arises in different circumstances according to whether the employment field, goods, facilities and services, housing or education is concerned[5]. The Commission agrees that a single threshold at which the duty to make reasonable adjustments is triggered would make it clearer to disabled people, employers and service providers what their rights and responsibilities are under the law.

27 The Commission believes this threshold should be where a disabled person experiences "substantial disadvantage". The Commission believes it should also apply in housing.

Disability related discrimination or indirect discrimination? What next after the Malcolm judgement?

28 In the Malcolm v Lewisham case, the House of Lords judgement ruled that:

In DDA premises claims, a disabled person must compare their treatment with someone who is in the same or very similar circumstances to show that they have been treated less favourably for reasons relating to disability. For example, in Mr Malcolm's case, he would have to show that a non-disabled tenant or a tenant with a different disability who had sublet without permission was treated better and had not been, or would not be, evicted

a premises provider must know about the disabled person's impairment - and possibly the effects of it - to discriminate for reasons relating to disability 

29 The House of Lords decision in this case has made it more difficult for a disabled person to prove disability-related discrimination.  The judgment means that for some types of disability discrimination cases the correct comparator for a disability-related discrimination claim is now effectively the same as for a direct discrimination claim.   

30 Prior to Malcolm, the correct comparator for disability-related discrimination claims (as interpreted by the Court of Appeal in the case of Clark v TDG Ltd t/a Novacold) was someone to whom the disability-related reason for the treatment did not or would not apply.  Once this was established, which was relatively easy to do, the case was decided on whether the treatment was justified.  So, for example, in Mr Malcolm's case he would only have to show that tenants who had not sublet had been treated more favourably to establish a prima facie case of disability-related discrimination.  The case would then be decided on whether the council had a valid justification defence.  

31 The effect of the Malcolm judgment is that, in premises cases, the comparison for disability-related discrimination is now more narrowly defined. This narrower comparison and the requirement that a premises provider has to know of the disability - and possibly the effects of it - to discriminate for a reason related to disability means that the scope of the protection under this concept has been reduced and is the same as under direct discrimination.

32 It is not yet clear whether courts and tribunals will apply the Malcolm judgment in the other parts of the DDA.  What remains to be seen is if the Malcolm comparator test and requirement that disability is known about may apply to services and schools education claims where, like the premises provisions as they exist now, the duty to make reasonable adjustments and disability- related discrimination are the only forms of unlawful discrimination, but where the justification defences available are broader than in the case of Malcolm.  There are cases in the system currently which are argued on the basis that Malcolm should be limited to premises claims only.

33 There are strong legal arguments that Malcolm should not apply in the employment and post-16 education parts of the DDA where stand-alone, separate concepts of direct discrimination already exist.  The basis for this argument is that Parliament cannot have intended to ascribe the same meaning to separate concepts of direct and disability-related discrimination (the latter of which is capable of justification whereas the former is not) in these parts of the DDA.

34 The House of Lords judgement goes against the policy intent of Government. Therefore, Government is expected to propose an approach in the Equality Bill to remedy the effects of the Malcolm judgement. The Office of Disability Issues will consult on its proposals in December 2008. The Office of Disability Issues had said that it will propose including a provision for indirect discrimination rather than disability related discrimination in the Equality Bill in order to achieve its aims.

35 At the time of writing, the Commission has not had the opportunity to consider the Government's proposals in full, or to discuss its position with stakeholders. It would therefore be premature to include a position in this initial submission. The Commission would however welcome the opportunity to provide further written or oral evidence on its position having had chance to develop its position.

 

Disability Related questions in Employment

36 The Disability Rights Taskforce recommended in 1999 that disability related enquiries before a job is offered should be permitted only in very limited circumstances.

 

37 The Government rejected this recommendation. However, the Commission consider there is a clear and pressing need for this proposal.

 

38 The DDA is proving inadequate in addressing recruitment problems. Disabled people in DWP research identified recruitment as the most common source of discrimination[6]. Many employers still ask medical questions about applicants' disabilities prior to job interview and selection. This enables employers who wish to discriminate to simply reject disabled applicants at an early stage. It is extremely difficult to prove such discrimination. In any event some disabled applicants are discouraged by questions from even proceeding with their application. A recent call to the Commission's Helpline illustrates how health related information can influence what happens even after selection:

 

'I have been offered a position within a government organisation. Since completing the health declaration they are making it awkward for me to start and have asked me to consider if the job is right for me and also belittled the job by telling me that they think I will be bored doing it. The lady said to me " I will be honest with you, what is written on this health declaration concerns me, I need people who are going to come to work'

 

39 The Commission believes that such questions prior to job selection should be prohibited. The Commission is concerned at the continued prevalence amongst disabled people of the view that employers routinely discriminate in the recruitment process. For example, 39% of mental health users in a MIND Survey felt that they had been denied a job because of their psychiatric history[7]. The fear of discrimination acts as a deterrence to disabled people applying for jobs. In the same survey, 69% of mental health users had been put off applying for jobs for fear of unfair treatment.

These fears of mental health service users appear to be well justified. Glozier tested the attitudes of major UK companies to mental heath problems of potential employees. Two hundred personnel managers were asked to assess the employment prospects of two job applicants, based on vignettes identical except that one was diagnosed as having depression and the other as having diabetes. The applicant with depression had significantly reduced chances of employment[8].

40 Although it is open to disabled people to challenge recruitment discrimination through the DDA, this is a very poor second best to reducing the actual incidence of discrimination in recruitment. The Commission agrees with the position adopted by the Disability Rights Taskforce and the Disability Rights Commission that a powerful way of achieving this would be to remove the opportunity for an employer to know that an individual has a disability prior to offering an interview, so removing the possibility that a prejudiced judgement is made. The Taskforce recognised that employers have legitimate needs to ask disability-related questions:

when inviting someone for interview or to take a selection test, employers could ask if someone had a disability that may require

reasonable adjustments to the selection process

 

when interviewing, employers would be allowed to ask job related questions, including if someone had a disability which might mean a reasonable adjustment would be required

 

for monitoring purposes

 

in relation to the guaranteed interview scheme.

 

41 The Commission believes that good guidance based on a clear legal framework is the best way forward.

 

 

 

Disability Discrimination and the armed forces

42 The armed forces are the only employer to remain exempt from the Disability Discrimination Act. This exemption should be removed.

43 The Commission recognises the special nature of the armed forces and would not wish to see the armed forces having to accept as combat effective people who are not. However, disabled people in the armed forces should not be denied rights against unfair discrimination in employment. The Commission's helpline receives calls from service personnel seeking to challenge disability discrimination. For example, one caller alleged that he had been denied promotion in the army because of his diabetes, another was experiencing what he felt was discrimination because of his cancer. People with histories of conditions such as epilepsy (seizure free for two years) and psoriasis have called the Helpline to complain that they have been rejected by the armed services.

44 The objection that no disabled person can be effective in the armed forces appears to be based on an inaccurate and limited appreciation of the definition of disabled people.

45 Adequate safeguards can be provided to allow operational effectiveness to be maintained. Thus the Parliamentary Scrutiny Committee on DDA 2005 recommended that the armed services should be subject to the DDA and that a regulation-making power should provide for an exemption, as in the SDA, for discrimination for the purpose of ensuring the combat effectiveness of the armed forces.

Volunteering

46 The Commission urges the Government to prohibit discrimination in relation to volunteering which, as the Government recognises, makes a hugely important contribution to community cohesion and provides important routes into paid employment. This is an issue which applies equally to all strands of equality. The government should act to protect volunteers against discrimination and harassment, not just on the ground of disability but also on other grounds.

47 Many disabled people actively engage in volunteering, both for its own sake and as a step towards employment. Volunteering makes a massive contribution to the economy and promotes social inclusion and skills development.

48 The Commission makes available the DRC's voluntary guide 'Guidance for Volunteer Opportunity Providers'[9]. However, it does not give disabled people enforceable rights.

49 At present the law regarding when volunteers count as being covered by discrimination laws is very complex. There is no explicit exclusion of volunteering but caselaw has clarified that volunteers are rarely covered by the employment provisions and it is unlikely that they would be protected by the current framing of goods and services provisions. Extending the protection of the law to volunteers would bring helpful clarification.

50 The Parliamentary Scrutiny Committee on DDA 2005 recommended that volunteers should be protected by the DDA. This can be done by inserting a provision in the goods, facilities, and services part, by defining volunteering opportunities as a facility. Age Concern's report 'Age of Equality'[10] discusses how this can be framed.

Discrimination on grounds of association or perception

51 The Equality and Human Rights Commission supported the successful case of Coleman vs Attridge Law. Ms Coleman's victory before the European Court of Justice has ensured that the UK's disability discrimination law provides protection on the grounds of someone's association (including caring responsibilities) with a disabled person in relation to direct discrimination and harassment in the employment sphere.

52 The judgement implicitly suggests that a person should also be empowered to bring a case of discrimination on grounds of being perceived to be a disabled person.

53 The Commission believes the judgment should be built upon in the Equality Bill, harmonising provisions in relation to disability with the other protected grounds, where British legislation covers both ` perception and association.

54 Individuals experience discrimination because they are falsely perceived to be disabled. As Sharon Coleman's case demonstrated, friends, family and carers can also suffer discrimination because of their association with a disabled person, not only in the employment sphere but in other areas, such as the bullying of the children of disabled parents in school, or barriers to accessing shops and restaurants for families with disabled children.

55 The Commission believes that it is right that such people should be protected from discrimination. In addition we believe that such a change to the law will be required under the proposed European Framework Directive on goods, facilities and services since, like the Employment Directive, it proposes to extend protection against any discrimination "on the grounds of" disability[11].

56 The Discrimination Law Review Green Paper argued that extending protection to those discriminated against on the basis of association and perception would not be 'proportionate' as it would extend coverage to several million extra people. But the same point applies to race, religion and sexual orientation. The proposal is merely to extend the right of equal treatment - not the right to reasonable adjustments[12]. The Commission does not accept that this would risk diluting the effectiveness of the law in relation to disabled people themselves.

57 The Parliamentary Scrutiny Committee on the Disability Discrimination Act 2005 recommended that the law should prohibit direct discrimination and harassment against people who are associated with a disabled person or are perceived to be disabled.

Coverage of transport

58 Currently all air and maritime services are exempt from the anti- discrimination provisions of the Disability Discrimination Act . This leaves a major gap in the legal protection, which the Single Equality Act should remedy. Voluntary codes for shipping and aviation have not worked, and the Single Equality Act needs to lift these exemptions.

59 There is extensive evidence about the problems in these sectors.

Leonard Cheshire's 'Now Boarding: disabled people's experiences of air travel' (July 2007) found that of disabled travellers surveyed:

- 67% of disabled people experienced difficulties with seating on board their flights;

- 61% had difficulty boarding the flight;

- 37% experienced negative attitudes from staff on board flights and at airports;

- 25% said that booking was a problem; and

- 11% had to cancel or delay a trip because of problems accessing a flight.

 

"My friend's golf clubs are handled better than I am when I'm flying"[13].

60 Whilst the introduction of an EU regulation on the rights of passengers with reduced mobility will address some of these problems, coverage by the domestic disability discrimination law is still required to give full protection to disabled passengers. The regulations are unlikely to protect as wide a group of disabled people as the DDA since they apply only to "persons with reduced mobility'. This is further described as people who need assistance. However, many disabled people do not need assistance, and nonetheless experience discrimination in air travel. For example, the group of passengers who were ejected from a flight in 2006 solely because of their deafness are unlikely to be entitled to legal redress. Equally, someone with HIV or cancer who has no symptoms is unlikely to be covered. These individuals would probably fall outside the scope of the EU Regulation, but they are likely to be covered by the DDA.

61 In addition, the regulations do not offer the same flexibility as the DDA through the concept of reasonable adjustments.

62 The situation is likely to cause confusion for individuals pursuing cases, for example where some of the circumstances involve issues covered by the Regulation and where others are still covered by the DDA.

63 In relation to shipping, particular problems arise where some companies refuse to let guide dogs on board or do not let them out of the cars, with the result that some passengers with visual impairment either cannot travel or are forced to stay in the cars they are travelling in once on board.

Public sector duties

64 The Commission wishes to see a single duty according equal coverage of all groups and which works effectively across Britain's 44,000 public authorities

65 The key strength of the current equality duties is that it places the onus on public authorities to promote equality pro-actively, rather than waiting for individuals to take action against public authorities. This is particularly the case relating to the design and delivery of policies and services, where the likelihood of legal action by an individual is non-existent. The Commission is clear that the proactive nature of the duty should be re-emphasised in the Bill.

66 The Commission feels that the specific duties should be built around what the Government Equality Office have termed 'action based principles'. The Commission goal is to ensure the development of evidence-based and action orientated set of specific duties. This should be underpinned by transparency, with public authorities required to demonstrate that they are operating in a fair and open way.

67 The Commission proposes that the emphasis should be on outcomes, objective setting, action planning and evidence-gathering. This will enable the development of a simplified public duty.

68 The Commission is not advocating the retention of the current requirement for public authorities to produce Equality Schemes. The Commission does not believe that Equality Schemes represent the most effective means of enabling public authorities to deliver substantive improvements in outcomes. A combination of prioritisation, action planning and reporting through the mainstream policy and corporate performance framework of the authority may be more effective.

69 There are key aspects of the current specific duties where the principles underlying the duties ought to be developed or extended to drive improvements in outcomes. These include:

 

A duty to publish objectives and priorities for action, and to implement them and report against progress

Equality Impact Assessment

Involvement and effective consultation

Reporting on progress

Inspection and regulation

 

70 A duty to publish objectives and priorities for action, and to implement them and report against progress: The public authority should publish, in its business plan or other public document, or in a separate action plan if preferred, its commitments to action on equality, and report against them in its main annual report or separate document.

71 Involvement and effective consultation: consultation and involvement are crucial to local accountability and to ensuring the local authority understands the local variations in issues and outcomes. The Commission believes that involvement and consultation should form explicit aspects of prioritisation, action planning and equality impact assessment requirements of the new duty.

72 Equality Impact Assessments: Equality impact assessments (EIA) are a vital tool which have helped to identify and tackle institutional inertia which the Macpherson report sought to highlight. EIAs help public authorities to ensure that their policies and services meet the needs of different communities while addressing differential outcomes instead of accepting 'one size fits all' public services as the norm. The Commission believes the principles underlying the purpose of EIA need to be re-stated in particular:

An emphasis on to outcomes and action

Focusing on evidence and data sources

Emphasising the need to build EIAs into mainstream policy development

Underlining that EIAs should be sharp and focused appraisals of existing and potential impacts

Emphasising the role of involvement in policy making

Stressing the importance of using the process to identify opportunities to improve policies as well as for risk management.

73 Reporting Requirements: Public authorities should be required to regularly report on their progress in respect of the duty. These report should be explicitly reflect their organisational priorities and the content of their action plans.

74 Inspection and Regulation: The Commission believes that while inspection and regulatory bodies are presently covered by the general and specific duties, the differential performance of such bodies to date means that it is necessary to explicitly set the expectations of the duty requirements upon such bodies. The Commission is keen to see the introduction of a specific duty on inspection and regulatory bodies to inspect relevant public authorities for their performance on equality.

75 Duties on Secretaries of State The Commission would also like to see the Single Equality Duty develop the principles that underpin the current Secretary of State reporting duty (Disability Equality Duty). The requirement for Secretaries of State to report on progress across their policy sector and produce proposals for co-ordinated action to address shortcomings appears to have driven improvements in data collection and analysis, and may help to strengthen co-ordinated activity across different departments in the future.

76 The Commission would also like to see Secretaries of State being given a direction making power (that could also be stipulated as a duty) to set out priority national outcomes which should be taken into account by public authorities, when setting their own priorities for action. These would be set every three years in conjunction with the Comprehensive Spending Review and PSA and LAA process. The targets would draw on the evidence made available by the EHRC Triennial Report and the relevant statistics on the most significant disparities in equality outcomes for each group, and the relevant gaps for groups facing multiple disadvantage. There is also the possibility to set national outcome targets on the basis of socio-economic disadvantage, in addition to equality mandate areas. For example, the Secretary of State for Health may require health services to focus on the uptake of ante-natal and neo-natal services by low-income women of Pakistani and Bangladeshi origin.

Transparency

77 The Commission supports the use of transparency measures as a solution for achieving greater fairness. In welcoming proposals for particular public bodies to publish equality data, the Commission has pointed out that the collection of these figures will only be of value if the gaps exposed are analysed and tackled through systematic action.

78 In addition, the Commission considers that rather than waiting for a review of equality outcomes five years on from the Bill, there is a case for legislating immediately, in areas such as publishing equality and diversity data if businesses are requested to do so by their shareholders, and appointing a senior staff member to be accountable for performance on equality.

79 The Commission wants to work with businesses to identify the right data to be collected and reported on and specifically proposes that the data captured should be relevant, tailored to the capacity of the organisation to gather it, relatively simple to obtain and collate, and designed to get at real outcomes rather than merely describe processes and procedures.

80 The Commission also is hoping to see a new power in the Equality Bill enabling it to issue a formal notice to an organisation requiring it to provide specific data from that it is already collating. Although the Commission believes the primarily purpose of the data is to remain the empowerment of shareholders, customers and the general public to hold institutions to account.

A 'Kite Mark'

81 The Commission has said it would be pleased to contribute to the Government's plans to develop a kite mark system as proposed in 'A framework for a fairer future'.

Age discrimination in goods, facilities and services

82 The Equality Bill will make it unlawful to discriminate against adults aged 18 and over because of their age when providing goods, facilities, services and carrying out public functions. The specifics of the new law will be set out in secondary legislation. The legislation will make exemptions for the differential provision of goods or services for people of different ages where this is justified. In other words, there is no intention to prevent service providers from offering age-specific goods and services, for example, free bus passes for the over 60's and discounted rail travel for young people and so on.

83 The Government considers tackling age discrimination will be a long-term challenge and a transition period is anticipated before these laws are brought into force, with specific reference to their coverage of health and social care. In a recent written Parliamentary statement the Minister for Care Services announced the Government's plans to set up an advisory group in December 2008 and to consult on its proposals in 18 months time.

84 The Commission has expressed the view that the extension of age discrimination protection: 'should cover everyone, including those under 18', although this is not currently a view shared by Government who have made their intention clear that protection will not extend to services for children.

85 The Commission is looking forward to the Government honouring its commitments to outlaw age discrimination in the provision of goods facilities and services by building a timetable for implementation into the Bill which ensures both that service providers and those who will enjoy new rights know when the changes will come into play and to ensure that momentum is not lost

Enforcement

86 The Commission welcomes many enforcement measures proposed in the Government's response to the Discrimination Law Review such as :

allowing employment tribunals to make wider recommendations in discrimination cases, to benefit the wider workforce and prevent further discrimination in the future. This is one area covered by the July 2008 dispute resolution consultation launched by BERR ;

to further consider developing a systematic method of disseminating learning from tribunal judgments. It is confirmed that tribunal judgments will be available or searchable on the employment tribunal service's website;

although the introduction of equality tribunals or specified courts to hear discrimination were rejected, it is proposed that appropriate training will be made available to all judges hearing discrimination cases as well as making provision for expert assessors to advise judges in cases of discrimination across all protected grounds;

to promote the use of Alternative Disputes Resolution to resolve disputes fairly and speedily without burdening the courts, although this will not replace the need for access to redress in the courts;

to further consider multiple / intersectional discrimination and representative (group) actions as possible heads of claim. Multiple discrimination would allow for a claim of unfair treatment suffered as a result of a combination of protected characteristics i.e. suffered as a consequence of being a black woman. No provision will be made for representative actions until the Civil Justice Council's recommendations in its review of collective redress mechanisms has been fully considered;

the role of Ombudsmen to hear complaints is also under review. It is anticipated that the EHRC will work with the Ombudsmen to ensure they are effectively equipped to deal with discrimination complaints;

to support the role of Trade Union Equality Representatives by building on previous initiatives but not providing a similar statutory footing as union learning representatives; safety representatives or shop stewards.

87 In addition, the Commission would like to become one of the designated bodies capable of bringing representative actions in discrimination claims.

88 The Commission wants the Equality Bill to legislate to equip it with a simpler, more proportionate, risk-based, flexible tool to promote equality in the private sector alongside its existing inquiry and investigative powers.

The Commission's position on the draft EU Directive on discrimination in relation to goods, facilities and services

89 Under the current EU legal framework, prohibition of discrimination on the grounds of disability applies only to employment, occupation and vocational training. The current draft EU directive on equal treatment between persons irrespective of disability, religion or belief, age and sexual orientation outside the labour market would, if passed, extend these rights to the sphere of goods and services. The Commission therefore strongly supports the draft directive, and would like to see a strong European anti discrimination framework in place which complements the rights enshrined in the UN Convention and the DDA.

90 It is important to enshrine one standard of protection across the EU, particularly given the mobility of British people (and other nationalities) in the EU. We are keen to ensure that if a British Disabled person moves to live in another EU Member State, they should have at least the same minimum levels of protection as domestically, and vice versa when people from other Member States move to Britain.

91 In line with these objectives, there are some areas of the draft Directive where EHRC will be seeking greater clarity or additional protections. With respect to disability specifically, these are:

It is important that the scope of protection covered in the directive is sufficiently wide to cover those areas where discrimination is most prevalent, for example education and housing. The Commission is therefore keen to see the current intended scope of the directive, which encompasses goods and services in the areas of housing, education and transport, retained.

Although the Directive generally prohibits discrimination in education, there is an exception for special educational needs provision (i.e. discrimination and harassment in SEN would not constitute unlawful discrimination). There appears to be no objective justification for this exemption and we believe that disabled pupils and those with SENs should have the same protection as any other pupil.

As with the EU's Employment Framework Directive, there is no definition of disability offered in this draft directive. The recitals only refer to the UN Convention which offers a relatively restrictive definition of disability if taken as the baseline for protection. Adding a clause to the recitals which makes it clear that disability includes those with chronic and/ or long-term health conditions would rectify this.

The directive requires service providers, including in education, to make reasonable adjustments for disabled people, however the current wording is open to broad interpretation, and therefore potential evasion. The Commission believes that the intention and meaning behind some of the provisions relating to the duty to make reasonable adjustments would benefit from greater clarification to ensure legal certainty, and consistency with the approach in the DDA.

The draft Directive as currently worded states that matters relating to marital or family status and reproductive rights, including adoption rights, are outside the scope of the Directive. In the UK, potential discrimination on the basis of marital status, family and reproductive rights is covered by both anti-discrimination provisions and the Human Rights Act. The Commission therefore favours removing this exemption from the directive to bring EU law more in line with protections offered domestically.

Although the directive covers four potential grounds for discrimination (with gender and race already covered in EU law), there is no provision for bringing multiple discrimination claims. In reality discrimination can occur on the basis of more than one ground and so the Commission favours a form of redress which can cover multiple grounds.

Access to Work-: Making it fit for all

92 The Commission welcomed the announcement in the Welfare Reform Green Paper of a doubling of funding for the Access to Work scheme. The Access to Work scheme has consistently provided a clear return on investment to the Treasury (1.88 for every 1 spent) and for many has been the pivotal factor in their getting in, getting on and staying in work. 

93 Further measures to improve the provision of Access to Work:

Reduce bureaucracy and save costs by introducing degrees of self-assessment, in particular for long term users of Access to Work, especially where it is clear that the basic need for Access to Work support is unlikely to change

Review the adverse impact of different timescales and decision making processes for funding individual Access to Work requests in order to inform baseline standards across the country

Place greater control in the hands of Access to Work users by introducing a formal appeals procedure, also aimed at creating fairer and more even decision making

Ensure voluntary organisations led by disabled people, including those proposed for each local authority area by 2010, can compete on quality, not just cost, to provide Access to Work support

Actively and specifically publicise Access to Work to disabled people, employers and intermediaries as a key plank in the Government's efforts to reduce the numbers of disabled people that are out of work

Access to Work should be made available to people with mental health problems to support them in overcoming the barriers they face in securing and staying in employment

It should be expanded further and could be partially rolled into the expansion of individual budgets

Access to Work procedures should be adjusted to allow the scheme to fund support for individuals without involving the employer where this is practical and is the individual's choice. This may help address issues of perceived employer stigma around mental health conditions

Access to Work might be provided in the form of 'credits', based on an insurance approach or a 'call out' service allowing people to draw on it when required. For example a person with a mental health condition may be able to take up a new job or maintain an existing one by securing out-of-hours support, mentoring, counselling or stress management. (Again, this might be achieved via partial integration with individual budgets)

Access to Work could be used to pay for in-work job coaching and also in paying for temporary cover during short, intermittent absence from work due to either illness or accessing training or support

Access to Work does not currently support individuals to sell themselves to prospective employers i.e. it is not perceived as part of the individuals 'capital' whereby they are able to assure employers that the adjustments Access to Work brings come with the package

Access to Work does not aid individual progression and can act as a barrier given that the assessment is at the point of job entry or the onset of an impairment or health condition and not part of an ongoing 'getting on' package of support

 

 

November 2008

 

 

 

 

 

 



[1] http://www.parliament.the-stationery-office.co.uk/pa/jt200304/jtselect/jtdisab/82/8205.htm#a10

 

[2] Compton v Bolton Metropolitan Borough Council, Manchester, Case No. 2400819/00

[3] Gittins v Oxford Radcliffe NHS Trust EAT/193/99

[4] 'Reform of the Disability Discrimination Act: Professor Brian Doyle, Working paper 4 for the Independent Review of the Enforcement of UK Anti-Discrimination Legislation, University of Cambridge 1999

 

[5] The duty in relation to goods, facilities and services etc is triggered when a policy, practice or procedure or a physical feature makes it "impossible or unreasonably difficult" for a disabled person to access the "service" in question; the duty in relation to the employment field and education has a lower "threshold" and is triggered when a provision, criterion or practice or a physical feature of premises places a disabled person at a "substantial disadvantage" in comparison with people who are not disabled (substantial in this context means anything which is more than minor or trivial).

[6] Gewal, I, Joy, S, Swales, K, Woodfield, K, Disabled for Life, attitudes towards and experiences of disability in Britain, DWP2002.

[7] Sticks and Stones 1996 MIND

 

[8] Glozier, N. The Workplace effects of the stigmatisation of depression, Journal of Occupational and Environmental Medicine 40,1998

[9] www.drc-gb.org/docs/Guidance_for_Volunteer_Opportunity_Providers

[10] Age Concern (May 2007) Age of equality? Outlawing age discrimination beyond the workplace

 

 

[12] The reasonable adjustment requirement in the Directive is differently worded, and so the right to reasonable adjustment only applies to disabled people - not those perceived to be disabled nor associated with a disability.

 

[13] OPM Focus Group research for DRC 2007