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
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