Joint Committee on the Draft Disability Discrimination Bill Written Evidence


DDB 134 Bert Massie

I am writing in connection with the Disability Discrimination Act 1995 (Amendment) Regulations 2003, and our concerns that they might fail to implement General Framework Directive for Equal Treatment in Employment and Occupation. You will be aware that we raised these concerns in response to the consultation last year but we are now under some pressure to consider a legal challenge to the regulations. I thought it might be helpful if I outlined our concerns to enable you to take a view on them.

Our advice is that there are a number of areas in which the Regulations do not give the protection, that the Directive requires. First, it is our view that because the Directive aims to combat discrimination on the grounds of ... disability it is intended to cover discrimination on the basis of association with disabled people, as well as where someone is perceived as disabled and suffers less favourable treatment. Articles 1 and 2 of the Directive have been modelled on the similar provisions of the Race Directive (Council Directive 2000/43/EC). The Race Directive was in turn modelled on the Race Relations Act 1976.

It is the DRC's view that, in light of the broad interpretation of the phrase "on grounds of" in Race Relations Act cases, the DDA must be amended to cover discrimination by association and to cover perceived disability in order to comply with the Directive.

In this respect it is pertinent that the draft regulations in relation to discrimination on the grounds of religion and sexual orientation explicitly cover both discrimination on the basis of association and on the basis of false perception of someone's religion or sexual orientation.

Second, the Directive requires that Member States ensure that associations, organisations or other legal entities which have, in accordance with the criteria laid down by their national law, a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with his or her approval, in any judicial and/or administrative procedure provided for the enforcement of obligations under this Directive. This requires that mechanisms should be in place for permitting bodies - such as the DRC - to take cases under the legislation in their own name. Such a power to litigate would provide a valuable addition to the Commission's enforcement powers, a stronger vehicle for equality litigation without incurring the procedural complexities of the 'formal investigation' system. It would enable other interested organisations similarly to work more effectively and strategically to secure effective enforcement of the DDA.

Third, whilst we recognise that the issue of indirect discrimination is a complex we are unconvinced that Part 2 of DDA, as amended by the regulations adequately transposes the Directive..

Section 4A imposes a duty to make adjustment where the trigger events in proposed section 4A(1) occur. However the trigger events described in section 4A(1) do not replicate the words of Article 2.2. of the Directive. This is bound to cause confusion. Article 2.2.b uses the subjunctive "would put persons...at a particular disadvantage", section 4A(1)(a) does not use the subjunctive and worse raises the hurdle to be jumped. Thus it states "Where - (a) a provision criterion or practice applied by or on behalf of an employer...places the disabled person ... at a substantial disadvantage". Accordingly it is not an anticipatory provision since it requires application of the provision criterion or practice, and it is not merely a particular but a substantial disadvantage that must be proved.. Moreover section 4A limits the application of article 2.2.b to circumstances in which the employer knows that the person concerned is disabled: proposed section 4A(3). This is simply inconsistent with the provisions of Article 2.2.b. Of course it is very likely that if a person is disadvantaged by a provision criterion or practice they are likely to make this known but it is not to be assumed that they will. All this will be meat and drink to lawyers and will tie up Tribunals, and appellate courts in defining the differences.


You will want to take advice on whether the Government believes our interpretation of the requirements of the Directive is accurate. There is obviously some urgency as the Disability Bill provides an excellent vehicle for moving forward if we can reach agreement. If our legal advisors cannot agree then clearly the DRC will need to consider other ways of clarifying the law.

If it would be helpful for our respective teams to meet with a view to finding a way forward we would be happy to co-operate.

Best wishes,




Bert Massie

Chairman


 
previous page contents next page

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2004
Prepared 23 April 2004