Tuesday 23rd March 2004
1. The DRC welcomes the publication
of new clause 15 of the draft Bill aimed at extending anti-discrimination
provisions to councillors and members of the GLA.
2. We note the provision at clause
15B(4) for regulations to be laid as to the circumstances in which
treatment is to be taken to be justified for the purposes of s.3A
(1)(b). The Commission has considerable concerns about the "material
and substantial" test of justification contained in this
section of the employment provisions, which is, as held by courts
determining disability discrimination employment claims, a very
low threshold. These concerns were outlined in our review of
the legislation "Disability Equality: Making it happen".
Although the concerns are likely to be met in some part by the
new definition of direct discrimination (which is not subject
to the justification test), they nevertheless remain for less
favourable treatment which relates to a disabled person's disability.
We trust that the regulations will not be used to lower this already
low threshold even further.
3. With regard to the duty to make
reasonable adjustments: we have considerable concerns regarding
the wording which has been adopted in relation to this.
4. It was our understanding that
the reasonable adjustment provisions would broadly follow that
of the employment provisions, to ensure that all aspects of adjustments
would be covered. Indeed this is clearly the broad approach, as
these provisions would sit within Part 2 of the Act, and be subject
to the definition of discrimination contained in the revised s.3.
The wording of this provision, however, applies the duty to make
adjustments to physical features and in relation to a "practice,
policy or procedure". This is the wording of s.21 (1) of
the DDA i.e. from the Part 3 duties. This duty so far as it is
interpreted in relation to Part 3 applies for example to "no
dogs" policies, or fire evacuation policies. Separate provision
is made in Part 3 for "auxiliary aids and services",
which would include such things as sign language interpretation
and information in alternative formats. In view of this, we believe
that it is likely that it would be argued that the duty in relation
to councillors is less extensive than either the duty in Part
3 or the equivalent duty in relation to employment. This could
mean that there would be no requirement to provide interpreters,
or to provide information in alternative formats - key issues
for disabled councillors. We would wish to see this wording amended
to ensure that these areas are covered by the adjustment duty.
Contact:
Caroline Ellis, Parliamentary
Affairs Manager,
Disability Rights Commission
7th Floor,
222 Grays Inn Road
London WC1X 8HL
Tel: 020 7211 4082.Mobile:
07881 540426.
Email: Caroline.Ellis@drc-gb.org
See Disability
Equality: Making it Happen, pp 31 - 35; Jones v Post Office ([2001]
IRLR384; Surrey Police v Marshall [2002] IRLR843
