DDB 134 Disability Rights Commission
Supplementary Memorandum to the
Joint Committee on the Draft Disability Discrimination Bill
By the Disability Rights Commission
2 April 2004
Contents
1. Discrimination
by public authorities
2. Discrimination on basis of perception
and association
3. Protection for people with psychiatric
disabilities
4. Scotland and education provisions
5. Enforcement of Part 3
6. Duties of public authorities
7. School Governors
The Disability Rights Commission having
regard to the evidence, both written and oral, submitted to the
Joint Committee encloses the following information to assist the
Committee in its deliberations.
1. Discrimination by public authorities
1.1 We discuss at some length here
the DRC's concerns regarding the current drafting of clause 4
of the draft Disability Bill, which relates to the functions of
public bodies. This is an extremely important element of the new
Bill establishing for the first time clear coverage of many state
functions which are enormously important to disabled people. At
present we consider that its drafting is seriously deficient,
with the result that it will create confusion and complexity for
public authorities, and deliver inadequate protection for disabled
people.
1.2 The policy intention is made clear
in paragraph 34 of the Explanatory Notes which states that the
definition of discrimination in new section 21D "mirrors,
in so far as it is possible to do so, the definition of discrimination
used for service providers in section 20 DDA".
1.3 We entirely concur with the policy
intention that the framing of the non-discrimination provisions
in relation to public functions should closely mirror those relating
to the delivery of goods and services by public authorities (and
others). The legal distinction between functions and services
is by no means clearly established in case law, and this legal
distinction may in any event appear arbitrary and abstract for
those working in public authorities. Successful extension of
the DDA to public functions will be greatly encouraged if essentially
the same legal approach is adopted as applies to the delivery
of services by public authorities.
1.4 Clause 4 differs from sections
19, 20 and 21 DDA (which establish the right of non-discrimination
in relation to the provision of goods, facilities and services)
in three crucial ways. Firstly, it fails to establish an "anticipatory
duty"; secondly, the provision for reasonable adjustments
is not contained in a free standing duty; and thirdly, the threshold
or "trigger" for providing reasonable adjustments to
disabled people is higher and operates in a significantly different
manner.
1.5 Moreover, costs and resources are
specifically mentioned in clause 4 as factors to be taken into
account in determining what is reasonable. Part 3 does not currently
refer to any relevant factors but costs and resources are among
the considerations mentioned in the Code of Practice. We believe
that singling out costs in new section 21D will inevitably give
a different steer to public authorities as to the nature of the
duty.
1.6 In our view, clause 4 does not
achieve the stated policy intention. This note seeks to explain
why we take that view, and why we believe the approach on clause
4 is inadequate as a basis for civil rights in this very important
area. We attach particular importance to the anticipatory nature
of the duty because often, with regard recipient of services and
public functions failure to anticipate makes the right to an adjustment
ineffective. For example, in conducting a public consultation
over a three month period, failure to make preparations for alternative
formats of documents in advance of publication of the consultation,
may mean that those who rely on such formats only receive them
when it is in effect too late to participate.
1.7 Anticipatory duty
1.8 Unlike the duty on service providers,
clause 4 is not expressed as a positive duty to take reasonable
steps. It merely provides that if the outcome is very much less
favourable, certain consequences will follow. In our view, the
terms of section 21D(2) suggests a retrospective view of what
is reasonable, and will not promote systemic change in the way
that section 21 is presently designed to do. This retrospective
focus is in marked contrast to the construction of the service
provider's duty, which creates a clear anticipatory requirement.
1.9 What is it about the drafting
of the Part III duties which makes them have an anticipatory form,
in contrast to the drafting of Part II where the reasonable adjustment
duties is reactive?
1.10 The Government have clearly state
that they intend the Part III duties to be anticipatory, in contrast
to Part II duties which are reactive. The relevant sections in
Part III (sections 19 to 21 DDA) nowhere contain the word "anticipatory".
Understanding why the reasonable adjustment in Part III is anticipatory
requires a detailed consideration of their drafting. The distinctive
nature of the duty lies in the complex relationship between sections
19, 20 and 21.
1.11 In particular, sections 21(1),
(2) and (4) impose duties to disabled people at large (they refer
to "disabled persons" in the plural), which are nonetheless
only enforceable by individual disabled people making a claim
in the circumstances specified in section 19(1)(b). This two-tiered
structure, which is a novel approach, reflects a policy intention
to create a duty in order to promote systemic change. We examine
this in more detail below.
1.12 These key principles were confirmed
in the Disability Rights Task Force Report (From Exclusion
to Inclusion (1999), paragraphs 11 and 12) and the Government's
response (Towards Inclusion - Civil Rights for Disabled People
(2001), paragraph 3.73).
1.13 Underlying principles
1.14 Section 21 requires service providers
to take positive steps to make their services accessible to disabled
people. Four key principles underlie the duty.
1.15 First, it is a duty to disabled
people at large (subsections (1), (2) and (4) all refer to "disabled
persons", as opposed to "a disabled person"). It
is not simply a requirement that the service provider weighs up
in relation to each disabled person who wants to access its services.
The service provider has to consider the accessibility of its
services for disabled people generally. The duty therefore applies
regardless of whether the service provider knows that a particular
member of the public is disabled or whether it currently has disabled
customers.
1.16 Second - and directly flowing
from the first principle - the duty has an anticipatory element.
It requires a service provider to plan ahead to meet the needs
of disabled people. The Government's intention was to encourage
service providers to take action which would promote wider, systemic
change. Service providers are therefore required to adopt a proactive
approach. The aim is to ensure that when disabled customers request
services, reasonable steps will already have been put in place
to enable them to access those services without unreasonable difficulty.
(It may not always be reasonable to anticipate a particular problem
but once a disabled customer's need becomes apparent, reasonable
steps must be taken to resolve the problem.)
1.17 Third, it is a continuing and
evolving duty which service providers need to keep constantly
under review in the light of their experience and changing circumstances,
for example, technological developments offering new solutions.
1.18 Finally, although it is a duty
at large, it is designed to give rights of recourse to individuals.
1.19 The duty to make reasonable adjustments
comprises a series of duties which are set out in subsections
(1), (2) and (4). They are triggered at different levels. The
duties under subsections (1) and (2) are both concerned with removing
existing barriers to access. They arise where a practice, policy
or procedure, or a physical feature, makes it impossible or
unreasonably difficult for disabled people to make use of
the service provider's services. The duty under subsection (4)
relates to additional things that could be done to help access.
This duty arises where an auxiliary aid or service would enable…or…facilitate
disabled people to make use of the services, which is a much lower
threshold.
1.20 Effect of failure to make adjustments
1.21 Although the duty to make reasonable
adjustments is a duty to disabled people at large, the intention
is that it should be enforceable by individuals. This fourth principle
is achieved through the two-stage process created by sections
19, 20 and 21.
1.22 The Code of Practice states at
paragraph 4.34 that "A disabled person is able to make a
claim against a service provider if:
- the service provider fails to do
what is required; and
- that failure makes it impossible
or unreasonably difficult for that disabled person to access any
services provided by the service provider to the public; and
- the service provider cannot show
that such a failure is justified in relation to the disabled person."
An analysis of this statement reveals
the intricacies of the legislation.
1.23 To found a claim for unlawful
discrimination, a disabled person first has to show that the service
provider is in breach of one of the duties set out in section
21. The disabled person must demonstrate that the relevant duty
arose in the first place. He has to show (under subsection (1)
or (2)) that it was impossible or unreasonably difficult for disabled
people generally, and not just himself, to access the services
in question or (under subsection (4)) that use of the services
could have been made easier for disabled people generally. Breach
of the duty, therefore, is judged by reference to what it was
reasonable for the service provider to do for its disabled users
as a whole.
1.24 The absence of any adjustment
for the individual does not necessarily mean that the service
provider has failed in its duty. It is conceivable that the particular
requirements of the individual were not within the range of adjustments
that the service provider could reasonably have made at the relevant
time.
1.25 Breach of the section 21 duty
is not actionable in itself (section 21(10)). But the duty is
important for determining whether unlawful discrimination against
a disabled person has taken place. Unlawful discrimination for
the purposes of section 19(1)(b) requires first, a breach of the
duty at large and second, an adverse effect of that breach on
the individual concerned (apart from the absence of justification).
1.26 If the disabled person can establish
that the service provider has failed in its duty at large, section
19(1)(b) then requires the claimant to show that the effect of
that failure is to make it impossible or unreasonably difficult
for him to access the services in question - the same phrase that
occurs in two of the duties under section 21. For the purposes
of section 19(1)(b), however, the test is by reference to the
individual rather than disabled people at large. Effectively
the disabled claimant has to be able to show that, because the
service provider was in breach of its broad-based duty, he was
unable to access the services. The burden then shifts to the service
provider to justify the failure in relation to the individual.
If it is unable to do that, the individual's claim will succeed.
The sequence outlined above can be illustrated by the series of
diagrams shown below.
1.27 Government analysis
1.28 Paragraph 38 of the Explanatory
Notes states that the threshold of a very much less favourable
outcome in new section 21D(2)(a) is "broadly comparable to
the test in section 21(1) DDA where a service provider discriminates
if it is 'impossible or unreasonably difficult' for a disabled
person to make use of a service." We would take issue with
this statement on several grounds.
1.29 First, subsection (1) is not the
only relevant provision of section 21. As indicated above, while
"impossible or unreasonably difficult" is the test under
subsections (1) and (2) (policies practices and procedures, and
physical features), a lower threshold applies in subsection (4)
in relation to auxiliary aids and services - namely, where the
aid or service would "enable or facilitate" use of the
service.
1.30 Second, paragraph 38 suggests
that section 21 is concerned with the service provider's actions
in relation to an individual disabled person. That is not in fact
correct. Section 21, as explained earlier, imposes duties on service
providers to disabled people generally.
1.31 Third, the paragraph might confusingly
suggest that section 21 determines whether a service provider
has "unlawfully" discriminated against a disabled person.
That is not the case. It is section 19(1)(b) which does that.
1.32 Finally, because of the different
way that the two sets of provisions are constructed, we do not
agree that a very much less favourable outcome is in fact comparable
to the present threshold.
1.33 Practical consequences of this
absence of anticipatory approach
1.34 The failure to frame the reasonable
adjustments duty in relation to public functions in an anticipatory
manner is likely to create a significant divergence from existing
non-discrimination rights relating to services. In relation to
individual entitlement, a key concern is that what is reasonable
to expend in relation to a disabled individual is likely to be
very different from what is reasonable to spend in relation to
disabled people at large. The following example illustrates how
the new duty might work in practice, as compared to how the duty
under section 21 would work in the same situation.
1.35 Registration of births takes place
at a municipal building accessible only by a flight of stairs.
Thus, a wheelchair user cannot use the facility to accompany his
partner to register the birth, and has to ask her to go alone.
If the section 21 duty applied, the registrar would have to consider
what barriers there were, and what steps could be put in place,
before disabled users sought to use the service. Depending on
the registrar's resources (among other factors), it may be reasonable
to install a ramp to facilitate access. In the absence of such
provision, the wheelchair user would then have to show that the
failure to alter the physical feature had made it impossible or
unreasonably difficult for him to use the service.
1.36 Under the proposed clause 4 duty,
however, the disabled person would have to show that the outcome
of carrying out the function is "very much less favourable"
for him than it would be for others to whom the disability-related
reason does not apply. (It might be arguable because of the drafting
of the 'trigger', discussed in more detail below, that in such
a case the outcome is not less favourable, as the birth will nevertheless
be registered, if only by his partner.) He would then have to
show that the effect could have been prevented if the function
had been carried out in a different way or in combination with
some other act - in this case, the installation of a ramp.
1.37 New section 21D(2)(c) requires
that (having regard, in particular, to costs and resources) it
would have been reasonable for the registrar to have acted in
this way, to prevent "the carrying-out of the function having
that effect". In this legal approach, it is clear
that the issue of costs would fall to be considered in relation
purely to the effect on this individual - not in relation to disabled
people at large. Thus, if a ramp costs £10,000, it is highly
likely that a court would hold that spending that amount to allow
one person to access the registrar's function would not have been
reasonable.
1.38 In contrast, if the registrar
were considering similar provision for disabled people at large,
in the way that section 21 requires, such a cost would be more
likely to be viewed as reasonable, because the law is framed explicitly
to take into account the broad responsibilities of the service
provider to other disabled people.
1.39 More generally, the framing of
the service provider's duty to make reasonable adjustments in
an anticipatory form has been a very important communications
tool to encourage large service providers to adopt a proactive
role in addressing existing barriers to service provision.
1.40 Trigger
1.41 Under clause 4 a reasonable adjustment
is required where an authority carries out a function and for
a reason related to the disabled person's disability the outcome
of the carrying out of the function is very much less favourable
for him than it is (or would be) for others to whom that reason
does not (or would not) apply. This creates a very high threshold
(there must be a "very much" less favourable outcome).
In our view "very much less favourable" is a higher
threshold than the "unreasonably difficult" one. If
we were wrong, this would cause us to have grave concerns about
the efficacy of the services provisions of Part 3 DDA.
1.42 We provide below an example of
how the different 'triggers' might work in a particular situation.
1.43 A visually impaired person wishes
to claim tax relief. Despite notifying the office concerned that
she needed alternative formats, she is corresponded with in print,
a format which she cannot access. As a result , she has to ask
her neighbour to read the correspondence to her, so that she can
establish the subject matter and contents of the correspondence.
1.44 It is likely that with a trigger
of "much less favourable outcome", a court would hold
that the outcome had not been very much less favourable: she had
obtained the information via a neighbour - this despite the fact
that it would mean that she would be giving up her privacy in
order to ensure that the requisite correspondence was read. It
would in effect mean that authorities would benefit from the "coping
strategies" of disabled people.
1.45 If, however, there were a trigger
of "substantial disadvantage", it would be likely that
the process of her obtaining the information - i.e. asking another
person to read private correspondence - would be considered to
place her at a substantial disadvantage - as clearly non-disabled
people would not have to enlist the assistance of a neighbour
to ensure that they could read their correspondence - and would
thus be in breach of the Act.
1.46 Were the trigger in relation to
public functions more accurately to reflect the Part 3 approach
('impossible or unreasonably difficult') the courts would be able
to take into account such factors as the dignity of the individual,
with the result that a court would be very likely to conclude
that the failure to provide an appropriate format had made the
service unreasonably difficult for her to access.
1.47 "Reasonable Opinion"
justification
1.48 In our previous memorandum the
DRC questioned the basis on which acts which would otherwise constitute
discrimination can be justified under the DDA, in particular the
fact that treatment will be justified if in the opinion of the
service provider one of the conditions set out in the Act applies,
and if it is reasonable in all the circumstances to hold such
an opinion (s.20 (3) and (4)). We consider that this approach
allows too great a continued latitude for prejudice to be upheld.
It is true that the test is not based purely on the subjective
opinion, in that the judge must view the opinion as reasonable.
Nevertheless this approach does allow opinions based on prejudice
or stereotype to be upheld so long as such beliefs are viewed
by the judge as "reasonable". Judges in county or sheriff
courts do not have much experience in hearing disability discrimination
cases. The danger is that simply because they themselves prior
to the case have the same stereotype assumptions about the disabled
applicant as the service provider, the judge will conclude that
that view was a reasonable one to hold.
1.49 As you will be aware there have
been very few Part III cases, only a handful at appellate level.
One of these cases substantiates our concern on this issue. The
"reasonable opinion" approach also applies to justification
in relation to landlord and tenant allegations of discrimination
Rose v Bouchet [1999] IRLR463 involved a visually impaired guide
dog owner who claimed discrimination in relation to the refusal
of a landlord to rent a flat to him for a week. Mr Bouchet, having
discussed the matter with his wife, refused to let the accommodation
to Mr Rose on the grounds that the lack of a handrail would make
the steps dangerous for a blind person. Mr Rose uses a guide dog,
and a witness from the guide dogs association gave evidence at
the hearing that the steps were quite safe for Mr Rose as a guide
dog user.
1.50 Nevertheless, the sheriff dismissed
the claim on the grounds that Mr Bouchet had shown that his reason
for refusing Mr Rose was justified because in Mr Bouchet's opinion
that refusal was necessary in order not to endanger Mr Rose, and
that it was reasonable, in all the circumstances of the case,
for Mr Bouchet, to hold that opinion. This decision was upheld
on appeal.
1.51 This legal test requires judges
to consider the range of reasonable approaches. It contrasts with
a purely objective standard in which the judge will ask "was
the justification right as a question of fact?", not "was
it a reasonable mistake to make?". Our concern is that this
provides an insufficient driver towards changing attitudes, and
risks undermining the credibility of the law.
1.52 The example which the Minister
provided in her oral evidence to the Committee provides a useful
point for discussion. A pilot recently ordered a group of sign
language users off a plane for health and safety reasons. The
Minister appeared to say that the court should not be entitled
to apply hindsight to this situation when assessing whether or
not the action was justified, and that it should be able to take
into account the fact that the pilot had not had disability awareness
training. However, this approach fails to deliver recompense to
the deaf passengers ordered off the plane, and fails to provide
a strategic impetus for change. There is a positive disincentive
to providing training, as in that situation a higher standard
might apply.
1.53 Regulation-making powers
1.54 In its memorandum to the Joint
Committee on delegated powers under the draft Bill (DDB 30), the
Department of Work and Pensions states (at paragraph 24, which
discusses the Secretary of State's power to modify the justifications):
"In general, the policy intention is to place equivalent
duties on public bodies when they are exercising functions of
a public nature to those they are under when delivering services".
The Department then qualifies this statement: "However, the
wide variety of functions that are exercised by [such] bodies…and
the different actions involved in exercising functions, rather
than providing services, has required a different drafting approach
that may not prove to behave exactly as intended".
1.55 At paragraph 25 the Department
says of new section 21D(7)(a): "The power is designed to
allow the Secretary of State to optimise consistency with Part
3 of the Act, whilst at the same time enabling sufficient account
to be taken of any differences which may arise in practice in
relation to public authorities."
1.56 We accept that regulation-making
powers are an important adjunct to the primary legislation, and
(as the memorandum points out) may provide flexibility or be used
to address particular patterns of complaints. But we would be
concerned if the Department were relying on the regulation-making
powers to iron out the inconsistencies with Part 3 that undoubtedly
exist. Apart from the undesirability of further layers of amending
legislation, if - as we believe - the policy intention is that
there should be equivalence, it should be reflected in the primary
legislation.
1.57 It is also a matter of serious
concern that the new provisions will add to the variety of trigger
points not only in Part 3 (where the new sections on premises
will attune with those of service providers) but across the DDA.
It cannot be helpful to public authorities, who are being urged
to develop a strategic approach, to have to struggle with this
level of divergence.
Definition of disability
2. Discrimination on basis of perception
and association
2.1 We thought it might be helpful
to the Committee to discuss in more detail why we believe that
the Directive 2000/78/EC Establishing A General Framework for
Equal Treatment in
Employment and Occupation ("the Directive") requires
the prohibition of discrimination on the basis of perception of,
and association with disabled people.
2.2 The starting point
is Article 1 of the Directive which states that: "The purpose
of this Directive is to lay down a general framework for combating
discrimination on the grounds of religion or belief, disability,
age or sexual orientation as regards employment and occupation,
with a view to putting into effect in the Member States the principle
of equal treatment." (Emphasis added). The phrase "on
grounds of" plays a central role in the Directive.
As well as in
this key Article is found in the following passages :
2.3 Recital 16 which says:
"(16)
The provision of measures to accommodate the needs of disabled
people at the workplace plays an important role in combating discrimination
on grounds of disability.Article 2.1 which says :
" For the purposes
of this Directive, the 'principle of equal treatment' shall mean
that there shall be no direct or indirect
discrimination
whatsoever on any of the grounds referred to in Article
1.
2.4 Article 2.2.a which
says
"For the purposes
of paragraph 1: direct discrimination shall be taken to occur
where one person is treated less favourably than another is, has
been or would be treated in a comparable situation, on any
of the grounds referred to in Article
2.5 The definition of
harassment in Article 2.3 which concerns situations when "unwanted
conduct related to any of the grounds referred to in Article
1 takes place"
2.6 Article 2.4 which
says:
"4. An instruction
to discriminate against persons on any of the grounds referred
to in Article 1 shall be deemed to be discrimination within
the meaning of paragraph 1.
2.7 Article Articles 3.4
which says:
"4. Member States
may provide that this Directive, in so far as it relates to discrimination
on the grounds of disability and age, shall not apply to
the armed forces."
2.8 Article 4.1 which
says (so far as is relevant) in relation to the possibility of
a defence on the basis of an occupational requirement:
"...Member States
may provide that a difference of treatment which is based on a
characteristic related to any of the grounds referred to in
Article 1 shall not constitute discrimination where..."
2.9 Article 7.1 which
says:
"1.
With a view to ensuring full equality in practice, the principle
of equal treatment shall not prevent any Member State from maintaining
or adopting specific measures to prevent or compensate for disadvantages
linked to any of the grounds referred to in Article 1."
2.10 Article 14 which
says:
"Member States shall encourage dialogue
with appropriate non-governmental organisations which have, in
accordance with their national law and practice, a legitimate
interest in contributing to the fight against discrimination
on any of the grounds referred to in Article 1 with a view
to promoting the principle of equal treatment.
2.11 Similar words are used with specific
reference to age discrimination: see the title to Article 6, Article
6.1, and Article 6.2.
2.12 By contrast where the Directive imposes
a specific duty in relation to persons with a disability it states
so expressly. Thus the duty to provide reasonable accommodation
in Article 5 is explained thus:
"...This means that employers shall take
appropriate measures, where needed in a particular case, to
enable a person with a disability to have access to, participate
in, or advance in employment, or to undergo training, unless such
measures would impose a disproportionate burden on the employer..."
(Emphasis added).
2.13 The contrast between
the phrases "on grounds of disability" and "a person
with a disability" is plainly intentional. In our view it
shows that
the Directive is intended to provide protection to a wider class
than just those who have a disability.
2.14 The phrase "on
grounds of" in the context of discrimination law comes from
section 1(1) of the Race Relations Act 1976 ("the 1976 Act")
which defines direct discrimination thus:
"(1) A person discriminates against another
in any circumstances relevant for the purpose of any provision
of this Act if-(a) on racial grounds he treats that
other less favourably than he treats or would treat other persons..."
2.15 This has been interpreted
to include situations where the less favourable treatment in question
is not on the grounds of the complainant's race but on the grounds
of the race of those with whom the person does, or is willing
to, associate. There are three well known cases in which this
has been a determinative interpretation of the 1976 Act.
2.16 "Zarczynska
v Levy [1978] IRLR 532,[1979] ICR 184, EAT: The complainant
was sacked for serving a black customer, contrary to her employer's
express instructions. The EAT held that racial discrimination
occurred when a person was less favourably treated on the grounds
of the other person's colour.
2.17 Showboat Entertainment
Centre Ltd v Owens [1984] IRLR 7,[1984] ICR 65, EAT: In this
case a white employee was dismissed for refusing to carry out
an instruction from his employers to exclude young blacks from
an entertainment centre. That instruction was clearly unlawful
under section 30 of the 1976 Act (instructions to discriminate)
but only the CRE could take enforcement action in respect of that
section (section 63 of the 1976 Act). It was held following
Levy that discrimination on 'racial grounds' included discrimination
on the grounds of another's race or colour.
2.18 Weathersfield
Ltd v Sargent [1999] IRLR 94, CA: In this case Mrs Sargent
resigned from her job as a receptionist because she could not
bring herself to comply with instructions from her employer to
discriminate against black customers. It was held that this was
unlawful discrimination on the ground of the customers' race.
The Court of Appeal Beldam LJ specifically endorsed the reasoning
in Showboat and said 'In the context of the 1976 Act unfavourable
treatment of an employee, if it requires the employee to carry
out a racially discriminatory trading policy in circumstances
such as the present, is treatment on racial grounds.'
2.19 Each of these cases
show that there is a good policy reason for the protection that
was given. It is particularly noteworthy that it
enabled a person
who refused to obey instructions to discriminate against a person
who was black obtained proper protection.
2.20 The link between
the 1976 Act and the Directive is of great significance in this
respect.
2.21 The directive was
made under the new powers introduced into the EC Treaty by the
Amsterdam Treaty. The powers are contained in Article 13 EC.
2.22 The new Article 13
was the direct result of lobbying by a number of organisations
most specifically the Starting Line Group which had lobbied for
many years for the European Council to make a Race Directive equivalent
to the Equal Treatment Directive (Directive 76/207/EEC).
2.23 On the implementation
of Article 13 the Starting Line Group they proposed a race directive
as one of the first legislative acts under Article 13. They stated
in a paper which it is significant was published by the Commission
for Racial Equality:
"Up till now efforts to combat racism,
xenophobia, anti-Semitism, and religious hatred and intolerance
have been constrained by lack of competence in the Union's institutions.
The new Article 13 marks the first time that racial and religious
discrimination have been mentioned in the treaty...After ratification,
it will be possible to draft and pass a Community directive, establishing
a common standard of protection for citizens throughout the Union
and requiring member states within a time limit to pass their
own legislation enforcing this standard..."
2.24 This proposal was
of formative importance for the Commission in its proposals for
the first two directives under Article 13 which were announced
by Commissioner Flynn at the conclusion of the Conference in Vienna
on the 3rd and 4th December 1998 organised
by DG - V of the European Commission.
2.25 There can be no doubt
at all that the draft of what was to become the Race Directive
(Directive 2000/43/EC) as proposed by the Commission was modelled
on the proposals of the Starting Line Group which were themselves
modelled on the Race Relations Act 1976. The link has always
been overt and understood by those involved in making that Directive.
2.26 It is therefore particularly
significant that the Race Directive which was proposed at the
same time as the Directive now under discussion and which was
discussed by the institutions of the European Union at more or
less the same time as the Directive though passed a few months
earlier uses the "on grounds of" formula: see Articles
1, 2.2.a, 2.4 etc.
2.27 It is in our view
clear, once the legislative history is addressed, that the phrase
used in the Directive should not be construed as securing protection
only for those who are disabled but will have broader coverage
as under the Race Relations Act - of discrimination based on association
and perception.
2.28 It is notable that
in implementing the Directives requirements in relation to sexual
orientation and religion the Government has clearly stated that
protection from discrimination on those grounds encompasses discrimination
on the basis of perception and association. Why would regulations
on those grounds, passed explicitly to implement the Directive
(and no more than was required by that Directive) have been framed
in this way whilst disability discrimination, defined in the above
quoted aspects of the Directive in exactly the same terms as sexual
orientation and religion, continue with a narrower remit?
2.29 A copy of the correspondence
with the Minister on this (and other points) is attached.
The Minister makes two points regarding our interpretation
of 'on the grounds of'. Firstly the letter refers to the Directive
not being intended to cover all discrimination on the basis of
association because had it been intended to do so it could have
so provided as indeed it did in Article 2(4), which states that
instructions to discriminate shall be deemed to be discrimination.
However, merely because one type of discrimination by means of
association is explicitly stated to be covered, it does not follow
that all other types of discrimination by means of association
are not covered by the phrase "on the grounds of".
2.30 The letter also refers to the
wide interpretation of the term racial grounds leading to the
result that discrimination against a non-disabled person refused
a job reserved for a disabled person would contravene the Directive;
it is the Minister's views the Directive draws on DDA principles
and is thus asymmetrical. It is, however, by no means clear from
the way in which the Directive is drafted that it is not intended
to be symmetrical: that is, it potentially gives rights to non-disabled
people who have been discriminated against because they do not
have a disability. This point has been made by respected authorities
on the Directive, for example, by Lisa Waddington (Senior Lecturer
in EU Law, Maastricht University), who states that: "[it]
could be interpreted as embracing a symmetrical approach i.e.
an individual is protected from discrimination on the grounds
that they have a disability as well as discrimination on the grounds
that they have no disability. This interpretation would be more
in keeping with the approach on other grounds under EC law but
clearly goes against the line adopted with regard to indirect
disability discrimination in the Directive" (Paper to DRC/Leeds
University conference, September 2003).
2.31 It is noteworthy that at one
particular point - the provisions relating to reasonable accommodation,
contained in Article 5 - the Directive clearly establishes asymmetrical
rights, referring as it does specifically to "a person with
a disability" having such a right. In respect all other aspects
of direct discrimination (referred to above) the provisions of
the Directive apply in an identical manner to disability as to
the other grounds.
2.32 Indeed the Minister's point
regarding a non disabled person challenging preferential employment
for a disabled individual is considered to be a real prospect
by another academic authority on the Directive. Richard Whittle
in his article, The Framework Directive for equal treatment
in employment and occupation: an analysis from a disability rights
perspective (2002 European Law Review 27(3): 303-326)
discusses the likely application of Article 7 of the Directive,
which permits positive action to achieve equality, in this particular
context.
3. Protection for people with psychiatric
disabilities
3.1 We set out below examples of Employment
Appeal Tribunal cases which illustrates the complexities of the
law with regards people with psychiatric disabilities. This level
of confusion is unhelpful to employers, and deters people with
mental health problems claiming legal protection. The additional
cost of producing medical evidence alone (never mind the legal
expenses), as specified in the decisions of Morgan v Staffordshire
University and Woodrup v London Borough of Southwark, will frequently
exceed £1000, and can be substantially more.
3.2 Morgan v Staffordshire University
(EAT/322/00) clearly illustrates the difficulty caused to some
applicants. Ms Morgan had experienced bouts of depression over
a number of years. She gave evidence that her depression made
her lose interest in engaging in many of her normal activities
(housework, reading, going out, studying)
and become withdrawn. She hardly slept and had panic attacks on
two occasions. She was having counselling and was prescribed medication.
Her GP records were before the tribunal and contained numerous
entries over an extended period indicating when Ms Morgan had
been treated for depression and anxiety.
However, the EAT held that the absence of
a medical report specifically addressing whether the applicant's
symptoms conformed to the World Health Organisation's International
Classification of Diseases entitled the tribunal to hold that
she had not established that she had a clinically well recognised
illness.
3.3 Latchman v Reed
In this case the tribunal found that
the claimant had a severe depressive illness for a period of 8
to 9 months and then it ceased to be severe and became a "milder
depressive illness". She also had bulimia and agoraphobia.
The tribunal held that the impairment was
not long term because at the time of the discriminatory act it
could not be said that it was more likely than not that it would
continue for 12 months. The EAT upheld this approach and also
stated that the time of assessment for likelihood of recurrence
was the time at which the impairment
ceased to have a substantial adverse effect. It was not permissible
for a tribunal to take into account evidence that the impairment
had in fact recurred prior to the hearing.
Coutts and Co v Davis
EAT 9 October 2000. This
case involving a lady with adjustment disorder. It was recognised
that this was a clinically well-recognised mental impairment and
was long term and substantial. It interfered with her ability
to sleep and caused her pain. However, it was held that there
was no affect on normal day-to-day activities as categorised in
the DDA. The EAT upheld the tribunal's decision, but with reservations:
"We cannot leave the subject of disability without expressing
some concern that one can have a person put at huge disadvantages
such as, for example, being unable to sleep or in frequent pain
who yet, for want of being within one of the boxes of paragraph
4(1)(a) to (h) [of Schedule 1] must be taken not to be disabled
but that is a matter for the legislation rather than for us".
Woodrup v London Borough of Southwark
EWCA 2003 IRLR 111. This case involved a woman with anxiety
neurosis who stated that this condition was relieved by psychotherapy.
The EAT, upheld by the Court of Appeal, distinguished this case
from Kapadia, in which there was clear medical evidence as to
the effect of discontinuation of treatment, and concluded that
the applicant had failed to show that if the treatment had been
discontinued her impairment would then have had a substantial
adverse impact on her ability to carry out normal day to day activities.
On the question of whether the role of the
employment tribunal should have been more inquisitorial and interventionist,
in effect making "reasonable adjustments" as a service
provider, he considered the argument to be ingenious but unsustainable
on the facts of the case.
Lord Justice Simon Brown stated as follows:
"In any deduced effects case of this sort the claimant should
be required to prove his or her alleged disability with some particularity.
Those seeking to invoke this peculiarly benign doctrine under
paragraph 6 of the schedule should not readily expect to be indulged
by the tribunal of fact. Ordinarily, at least in the present
class of case, one would expect clear medical evidence to be necessary".
4. Scotland and education provisions
4.1 As we outlined in our earlier evidence
the Additional Support for Learning Bill is presently going through
the Scottish Parliament. This creates for the first time, Education
Tribunals in Scotland. It would be beneficial to young people
and their parents, as well as to schools and education authorities,
if Educational Tribunals in Scotland could deal with DDA education
claims in the same way as SENDIST currently do in England and
Wales. However to achieve this, the DDA requires amendment as
presently it states that
Scottish education cases must be dealt with through the Sheriff
Court.
4.2 We understand there has been
correspondence between the Scottish and English Education Ministers
and that in general terms the desirability of making the above
amendment to the DDA is agreed. The DRC believes that the present
Bill represents a timely vehicle for instituting these very important
changes. This issue has not been debated in the course of the
evidence sessions, and we have no clear expression of Government
intent.
5. Enforcement of Part 3 DDA
5.1 In our previous evidence the DRC recommended
that Part 3 cases should be adjudicated in the employment tribunal
service, as in our view this represents a more appropriate and
accessible route for resolving discrimination claims. In support
of our analysis we referred to the comparative low numbers of
goods and services cases compared with employment cases. It has
been pointed out in evidence that the research indicating the
numbers of Part 3 claims is now some three years old. The absence
of any central recording of Part 3 claims (in contrast to Part
2 claims about which information is more readily accessible) makes
it impossible to produce more up to date figures. However, the
Commission through its connections with claimants advice networks,
and monitoring of news, is confident that there has been no alteration
in the pattern of very low enforcement of Part 3.
5.2 We accept that the difficulties experienced
by disabled applicants in relation to the county and sheriff courts
are not the sole factor explaining the paucity of Part 3 cases.
However, the fact that county court applicants must pay an initiation
fee of £250, with further fees such as the allocation fee
of £90, whilst tribunal claims incur no fees, cannot but
deter applicants. (Legal aid, whilst theoretically available,
is very rarely given because of the small level of damages involved.
Similarly whilst low income applicants are exempt for fees, receipt
of incapacity benefit or Disabled Living Allowance will generally
take applicants over the income exemption level). Similar fees
apply in Scotland.
5.3 We would also concur that the success
of legislation should not be measured by the number of legal cases,
however the barriers to individuals taking legal action enforcing
their rights not only deprives them of access to justice, but
can also undermine the credibility of a law where there is widespread
failure to implement legal responsibilities but little risk of
legal sanction.
6. Duties of public authorities to promote
disability equality
6.1 There has been considerable discussion
in Committee sessions about the definition of public authority,
and since the submission of our initial evidence the Joint Committee
on Human Rights has published its report into the meaning of "public
authorities" under the Human Rights Act (The Meaning of Public
Authority under the Human Rights Act, Seventh Report of Session
2003-04). This is of particular relevance because the draft Disability
Bill contains the same definition of a public authority as the
Human Rights Act (HRA).
6.2 This does raise some concerns
as to the certainty of coverage of the public sector duty provisions
of the Disability Bill. Clearly those organisations covered by
the specific duties will be listed in regulations, but that may
leave uncertainties about those organisations which are covered
by the general duty.
6.3 We note that the Disability
Charities Consortium appears to favour a list approach, as in
the Race Relations Amendment
Act. We understand that they have indicated that the definition
as currently contained in the bill could remain, with a schedule
containing a non-exhaustive list of bodies which are covered by
the general duty (there are a number of examples of the approach
of non-exhaustive lists in the Act at present - in s.6 - examples
of reasonable
adjustments and of the factors to be taken into account in determining
what is reasonable - and s. 19(5) - examples of service providers.
6.4 We note that the JCHR have rejected
this approach in relation to the Human Rights Act: in particular,
their main objection is that this approach runs contrary to the
whole scheme of the Act, and that scheduling organisation as "functional"
public authorities under section 6(3)(b) of the HRA would leave
open the question of which of the body's functions were to be
considered public, and would therefore bring little advance in
certainty in the application of Convention rights. In addition,
the JCHR makes the point that the likelihood would be that bodies
not specified would be presumed by the courts to fall outside
of section 6.
6.5 We do not believe that such
an approach would prove problematic in respect of the public sector
duty. The issue as to which of the body's functions were to be
considered public
would, in our view, be unlikely to particularly trouble bodies
who would be covered, as we would expect them as a matter of good
practice to ensure that all their functions abided by the general
duty (given that the duty is to eliminate discrimination, as well
as promote equality of opportunity, they would only be acting
unlawfully if they were already subject to the provisions of the
DDA in respect of particular
functions). We believe that provided the language of the statute
is clear, there should not be an assumption that any bodies not
listed fall outside the scope of the general duty. This point
can be reaffirmed in the Code of Practice which the DRC will have
to produce to accompany these provisions.
6.6 We also note the option considered
by the JCHR that particular functions should be delegated as public
for the purposes of s.6 of the Act. This is an attractive solution
and one which the JCHR considered plausible, although it rejected
it on the grounds that it carried the risk of the implication
of exclusivity - that those functions not specified would not
be considered by the courts to be public. For the reasons outlined
above, we do not believe that this would cause concern in relation
to the public sector duty provisions.
6.7 We believe that the principles
of interpretation provided by the JCHR will be of great assistance
to courts and public authorities. If none of the solutions referred
to above are contained in the Bill proper, we would wish to see
reference made to the principles provided by the JCHR in any explanatory
notes accompanying
the bill, and the DRC would wish to include such principles in
its Code of Practice on the public sector duty.
6.8 Of particular relevance in this
regard is where or not the term applies to all organisations carrying
out functions on behalf of a public authority. We welcome the
firm statement
of Government intent which the Minister gave in this regard. However,
the Joint Committee on Human Rights has directed attention to
the impact of caselaw on this aspect of the definition. The Committee
considered a number of solutions, including amending legislation,
(to include, for example, the provision of a schedule of listed
authorities). It has rejected such solutions in favour of the
Government intervening in the public interest as a third part
in cases where it can press the case for a bread functional interpretation
of the meaning of public authority. It has also produced guidance
on the meaning of public function (principles of interpretation),
which it hopes will be adopted.
7 School Governors
7.1 It has been suggested that school Governors
may be covered by the DDA as amended by the Disability Discrimination
Act 1995 (Amendment) Regulation 2003, due to come into force in
October 2004. These regulations extended the DDA to cover certain
office holders but only where they are either paid, or directed,
or appointed by the Secretary of State. The majority of school
Governors are parents Governors who are elected and unremunerated,
and hence would not be covered
by the new regulations' provisions regarding statutory office
holders. The remaining Governors are either staff Governors or
are appointed by the Local Education Authority. The new provisions
would not apply to these either in carrying out their role as
Governors.
See Bell M. And Waddington L. "The
Intergovernmental Conference and the Prospects of a non-Discrimination
Treaty Article", 25 Industrial Law Journal (1996) 320, and
Bell M. "The New Article 13 EC Treaty: A Platform For A European
Policy Against Racism" particularly at page 82 et seq. in
"Race Discrimination - Developing and Using a New Legal Framework"
edited by Moon G., published by Hart 2000.
See "Proposals for Legislative Measures
to Combat Racism and to Promote Equal Rights in the European Union"
edited by Isabelle Chopin and Jan Niessen, published by the Commission
for Racial Equality 1998 at p.16.
See further the report of the conference "Article 13 Anti-Discrimination
the Way Forward" published by Europaforum Wien on behalf
of the European Commission 1999
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