DDB 134 Department of Work and Pensions
- Bert Massie
Department for Work and Pensions
Richmond House
79 Whitehall
From the Parliamentary London
Under Secretary of State for Work and
Pensions SW1A 2NS
Telephone
020 7238 0800
PSC(ME)/O4/1108
Email ministers@dwp.gsi.gov.uk www.dwp.gov.uk
Bert Massie
Chairman
Disability Rights Commission
7th Floor
222 Grays Inn Road
London
WC1X 8H 9
March 2004
Dear Bert
Thank you for your letter
of 10 February regarding the Commission's concerns that the Disability
Discrimination (Amendment) Regulations 2003 may fail, in some
areas, to implement correctly the General Framework Directive
for Equal Treatment in Employment and Occupation. You raised this
matter at our meeting on 26 January to review the performance
of the Disability Rights Commission, and 1 am grateful for your
providing a more detailed explanation of the areas about which
you are concerned. 1, and my officials, have given very careful
consideration to your comments and, while 1 will address the individual
points below, 1 believe that the changes made to the Disability
Discrimination Act (DDA) by the Amendment Regulations are consistent
with the requirements of the Directive.
The first point you raise
is that the phrase "on the grounds of ..
disability" is, in
your view, intended to cover discrimination on the basis of association
and perception. You rely on the broad interpretation of the (somewhat
different) formulation "on racial grounds" in domestic
RRA case-law. Having considered the text of the Directive as a
whole (including its recitals) in the context of the negotiations
leading to its adoption, 1 do not believe that the Directive requires
us to cover perception and association. 1 do not intend to use
this letter to rehearse all the arguments supporting this view,
but for the present draw
attention to two points.
First, 1 note that if the EC legislature had intended the Directive
to cover (for example) association, it could and would have so
provided - as indeed it did, in Article 2(4), in the case of instructions
to discriminate (also covered by the phrase "racial grounds"
in the RRA case-law).
Secondly, the wide interpretation
of the term "racial grounds" upon
which you rely, if applied
to disability discrimination under the Directive, would seem to
lead to the result that discrimination against a non- disabled
person refused a job reserved for a disabled person would contravene
the Directive. This interpretation of the Directive would
seem to undermine the
DDA's protection for disabled people, by restricting the circumstances
in which more favourable treatment of disabled people (or less
favourable treatment of non-disabled people) would be lawful.
The DDA of course recognises the "one-way" nature of
disability discrimination (prohibiting discrimination against
disabled people, but not against non-disabled people); in my view,
the Directive, which itself plainly draws on DDA principles, does
likewise.
Secondly, you suggest
that the Directive requires mechanisms to be in place permitting
bodies such as the DRC to take cases under the legislation in
its own name. Again, 1 cannot see that the Directive requires
this. Article 9(2) requires that you should be able to engage
"either on behalf or in support of' the complainant "with
his or her approval". This you are quite clearly already
able to do pursuant to your powers to provide assistance, including
legal advice and representation, to complainants under Part 2
(and Part 3) DDA. You also, of course, have power to bring proceedings
in your own name by way of judicial review and, from October 2004,
to enforce the new provisions on discriminatory advertisements
and instructions/pressure to discriminate. Finally, you have suggested
that our transposition of the Directive's reasonable adjustments
duty, which of course is set out in Article 2(2)(b)(ii), is inadequate.
First, you suggest that the Directive requires an anticipatory
duty. However, the content of the reasonable adjustments duty
referred to in Article 2(2)(b)(ii) is set out in Article 5
and only requires such
adjustments "as are needed in a particular
case": the duty quite
clearly relates to particular individuals and is not anticipatory.
Secondly, you are concerned that a "substantial" rather
than "particular" disadvantage has to be proved. But
"substantial" only means more than trivial, which 1
consider to be a lower hurdle than that imposed by the Directive;
so that using "particular" would in my view violate
the non-regression requirement in Article 8(2). Lastly, you criticise
the requirement that an employer should know the person concerned
to be disabled. It is important to be precise here: in fact, the
reasonable adjustments duty will arise if the employer does not
know
the applicant to be disabled,
provided that it could "reasonably be expected to know"
this. The Directive only requires "appropriate" adjustments
to be made "where needed in a particular case" and where
this would not impose a "disproportionate burden". This
cannot be read as requiring adjustments where the employer is
unaware not only of the need to make adjustments but also of any
facts which would put him on reasonable enquiry as to the existence
of that need.
I trust that you will
appreciate that, while I have given the points you raised in your
letter careful and detailed consideration, I reach substantially
different conclusions from those of the DRC on the requirements
of the Framework Directive.I appreciate your suggestion of a meeting
between our legal teams, but I believe this would be unlikely
to be productive given our conviction in our respective legal
opinions.
Best Wishes
Maggie Eagle MP
|
