DDB 74 DISCRIMINATION LAW ASSOCIATION
THE DISCRIMINATION LAW ASSOCIATION
SUBMISSION TO:
DRAFT DISABILITY DISCRIMINATION
PRE-LEGISLATIVE SCRUTINY COMMITTEE
Introduction
1. The Discrimination Law Association
('DLA') is a membership organisation established to promote good
community relations by the advancement of education in the field
of anti-discrimination law and practice. It achieves this by,
among other things, the promotion and dissemination of advice
and information; the development and co-ordination of contacts
with discrimination law practitioners and similar people and organisations
in the UK and internationally. The DLA is concerned with achieving
an understanding of the needs of victims of discrimination amongst
lawyers, law makers and others and of the necessity for a complainant-centred
approach to anti-discrimination law and practice. With this in
mind the DLA seeks to secure improvements in discrimination law
and practice in the United Kingdom, Europe and at an international
level.
2. The
DLA is a national association with a wide and diverse membership.
The membership is growing and currently consists of over 400
members. Membership is open to any lawyer, legal or advice worker
or other person substantially engaged or interested in discrimination
law and any organisation, firm, company or other body engaged
or interested in discrimination law. The membership comprises,
in the main, persons concerned with discrimination law from a
complainant perspective. We are a company limited by guarantee.
3. The
DLA welcomes the publication of this draft bill, which will implement
many of the outstanding recommendations of the Disability Rights
Taskforce and ensure that gaps in coverage such as the use of
transport will be subject to the Act's provisions. We are disappointed,
however, that the opportunity has not been taken to revise the
Disability Discrimination Act wholesale. Whilst an extremely important
piece of equality legislation, it is, in our view, very poorly
drafted, leading to difficulties in interpretation for both individual
claimants and legal representatives alike. Not only is the drafting
of the legislation poor - particularly, for example, the different
triggers for the reasonable adjustment duties contained in s.21
of the Act, alongside a separate trigger for enforcement of those
duties - but given the many and varied amendments to the legislation,
it is extremely difficult to deal with on a practical level.
4. In
addition, DLA supports a single equality act, which we believe
is vital to ensure equality for all disadvantaged groups and which
would provide an opportunity for the redrafting which the Act
clearly requires.
5. The
draft bill leaves much to regulations; we are concerned at the
amount of the legislation which remains to be "filled in"
by such regulations, and the fact that as a result they will
not be subject to the same degree of parliamentary scrutiny as
the bill proper. We would have preferred to see much of this -
such as the transport provisions, and the reasonable adjustment
duties in respect of clubs - on the face of the legislation. Again,
such swathes of regulations will add to the practical difficulties
in locating the correct law - particularly difficult for litigants
in person.
6. There
are a number of matters which are not dealt with in the legislation,
and about which we have concerns.
Definition of disability
7. The
definition of disability contained in the Act is extremely problematic.
The most recent research into the operation of the Act (Leverton,
S (2002), Monitoring the Disability Discrimination Act 1995 (Phase
2) London, DWP) showed that 16% of claims failed due to the individual
failing to meet the definition of disability - the biggest single
reason for a case to fail. Yet many of these cases involve, for
example, mental health issues which are clearly the subject of
prejudice (both in wider society and in employment - as evidenced
by a variety of studies by MIND). It is our experience
- specifically in the employment tribunal - that rather than
focus on the treatment which an applicant has experienced in the
workplace (which must and should surely be the main focus of the
legislation) tribunals spend often days in preliminary hearings
to determine whether or not an individual is disabled. This is
not only distressing for applicants, but it can act as a deterrent
to their bringing what may be a perfectly valid complaint. It
is also a difficult task for a tribunal - being required to consider
a variety of medical evidence and to hear evidence about what
an individual cannot do - or can do only with difficulty - whilst
then going on to consider whether or not an individual is qualified
for a particular post.
8. It
is our view that the current definition of disability should be
replaced with a much broader one, such as is in place in countries
such as Ireland. Whilst this is a highly "medicalised"
model (based on specific medical conditions which an individual
has, rather than on the societal barriers which impede their ability
to participate in society), it would seem to be the most effective
means of focussing the tribunal's attention on the treatment of
the individual - and thus whether or not there has been discrimination
- rather than tying up considerable time and resources in determining
whether or not an individual is disabled. Failing a wholesale
revision of the definition, we would support measures put forward
by the Disability Rights Commission to deem those in receipt of
certain benefits to be disabled; and to ensure better coverage
of those with mental health problems.
Scope
9. It
is our view - as expressed in our response to the Equality and
Diversity consultations - that implementation of the European
Directive requires the disability discrimination provisions to
cover those who are "associated" with a disabled person,
as well as those who are perceived to be disabled. The implementation
of the Directive by means of the Disability Discrimination Act
1995 (Amendment) Regulations (hereinafter referred to as the Amendment
Regulations )does not include implementation of this part of the
directive.
Employment
10. The
Bill does not address the issue of employment, but DLA has significant
concerns about the way in which the discrimination provisions
in relation to employment are operating. The case of Jones v Post
Office [2001] IRLR - which reduced the role of the tribunal considerably
in determining the issue of justification and set the threshold
for justification at a very low point - has resulted in
cases failing or failing to be pursued when the employer has relied
upon poor medical or health and safety evidence . In particular,
it has introduced the "range of reasonable responses"
test into the disability discrimination arena. Whilst the introduction
of the concept of direct discrimination - as a result of the Amendment
Regulations - will undoubtedly have an effect on justification,
it is our view that the majority of cases will continue to be
brought not under the direct discrimination provisions but under
the broader category of less favourable treatment for a reason
relating to disability. They will thus continue to be subject
to a very low standard of justification.
11. In
addition, the European directive provides that all measures contrary
to the principle of equal directive will no longer be valid; this
provision has not been reflected in the amendment regulations,
and thus there may continue to be statutes which discriminate
but which will not, under the DDA, be challengeable as contrary
to the Act's provisions (by virtue of s.59 of the Act).
12. We
note that the Disability Rights Taskforce, as well as the Disability
Rights Commission, have recommended that the power to order to
re-instatement or re-engagement in discrimination cases should
be extended to disability (and, in consequence, to other areas
of discrimination). This is something which we would support,
although we would want it to be clear that it is a matter of choice
for the applicant, and that this would in no way diminish the
applicant's entitlement to unlimited compensation should they
choose not to opt for re-instatement/re-engagement (and such compensation
will in any event be subject to the duty to mitigate loss). For
many people who have experienced discrimination, it will be neither
appropriate not desirable for them to return to work for the same
employer; whilst in other cases, this might be a welcome opportunity
for applicants.
Goods, facilities and services
13. We
have considerable concerns about the drafting of the existing
provisions of part 3 of the DDA, which deals with goods, services
and facilities claims. In particular, the threshold for pursing
an action - that the service is rendered "impossible or unreasonably
difficult to use" - is a very high one (as evidenced by cases
such as that of Alistair Appleby v DWP). Of further concern is
the subjective/objective nature of the justifications under this
part of the Act.
Education
14. Part
4 of the Act as it applies to pre-16 education does not permit
an individual disabled pupil to bring a claim of discrimination
in their own name - it is their parents who must act on their
behalf. This is in our view an omission, leaving individual young
people dependent upon parents to bring a claim. In addition, such
young people cannot obtain compensation for an act of discrimination
- yet a young person with a claim of racial or sexual discrimination
would be permitted to claim compensation. This in our view is
a potential breach of Articles 6 and 14 of the Human Rights Act,
and is something which should be addressed by government.
The Draft Bill itself
15. Clause
3 - removal of the exemption from the goods and services provision
of the use of a means of transport. DLA welcomes the removal of
this exemption. It is particularly invidious that bus or train
staff can discriminate against disabled people when they are using
transport without there being any redress. DLA is concerned, however,
that the removal will be effected by regulations, which have not
been published alongside the bill and would ask that the Scrutiny
Committee ensure that intent of the regulations is made clear
during the scrutiny process.
16. Clause
4: discrimination by public authorities. DLA welcomes this provision,
which will ensure that disability discrimination legislation is
on the same footing as that relating to race in respect of "public
functions". We do have some concerns, however, about the
exemption for an act done in carrying out a function of allocating
prisoners to a prison; or allocating prisoners to accommodation
within a prison (proposed section 21( c) (5)). This does appear
to be a very broad exemption: we presume that it may be intended
to preserve the right to determine where prisoners are placed
for security reasons, but as presently framed, could equally encompass
those determinations in relation to accommodation which are not
made in relation to security considerations. Any necessary exemption
to the principle of non-discrimination should be framed as narrowly
as possible, and we would suggest that the scope of this exemption
be narrowed to reflect the particular concerns on this issue.
We also note that there is regulatory making provision to prescribe
further acts to which the provisions in respect of public functions
are not to apply. Again we would question the liberal use of regulatory
making provisions in the Act.
17. The
definition of discrimination contained in proposed s.21(D) is
also of some concern to us. There are a number of points in particular:
the low threshold of "very much less favourable" for
what appears to be the reasonable adjustment duty (how is "very
much" to be distinguished from "much" or indeed
from "less favourable" ; how will the comparison be
made); the lack of an anticipatory element to the reasonable adjustment
duty and the apparent requirement of knowledge on the part of
the service provider (it is framed as being required to prevent
"that effect" - implying that the public body must have
knowledge of the disabled person's very much less favourable outcome
before being required to act, in addition to the duty to make
adjustments being owed to an individual, as opposed to disabled
people at large - the vital key to the s.21 duties). There is
also considerable scope for justification, such justification
being on the basis of the genuine belief reasonably held - a relatively
low threshold, certainly as indicated by the case of Rose v Bouchet.
Finally, there are (again) considerable regulation-making powers
in this section.
18. Clause
5: discrimination by private clubs. Again, we have a number of
points of concern in relation to these provisions: the extensive
list of justifications, particularly when coupled with the subjective/objective
standard of justification; the extensive regulatory making powers
contained in the section; and the fact that guests are not to
be covered by the provisions from the outset.
19. Clause
6: discrimination in relation to let premises. We note that there
is no provision for landlords to be required not to withhold consent
unreasonably from tenants who need to make physical alterations
to premises as a result of their disability; and that it is the
government's view that the Landlord and Tenant Act of 1927 is
sufficient to cover this matter. We are aware, however, that this
statute does not apply in Scotland; applies in only limited circumstances;
and that what is "unreasonable" in respect of the Landlord
and Tenant Act, a piece of property legislation, may be different
to that which would be unreasonable under a piece of disability
discrimination legislation. Coupled with this would be the fact
that the Disability Rights Commission would have no power to issue
a code of practice covering the provisions in the Landlord and
Tenant Act, nor to take proceedings on behalf of a disabled person
in this respect. We would urge the Committee to recommend inclusion
of the relevant provisions in this bill.
20. Clause
8: public sector duty. DLA welcomes the extension of the public
sector duty to the disability arena. We are aware that the government
committed itself to introducing a similar duty in respect of gender,
and we like to see these duties extend across the six strands
of discrimination. We note that the approach to the coverage of
public bodies is to be that of the Human Rights Act definition.
We are concerned that this may lead to a lack of clarity, and
to some of the disputes which the courts have seen regarding whether
or not a body is covered by the HRA at all or is covered in respect
of particular functions. We would suggest, to ensure clarity,
that the definition indicate that it includes, but is not limited
to, the list of bodies contained in a schedule to the Act, and
that this list could mirror that in the Race Relations Amendment
Act and its accompanying, updating, regulations. This would provide
clarity as well as ensuring that certain bodies do not fall within
scope because they are not listed. We would like to see the specific
duties having a suitably "outcome" focussed approach,
ensuring that they are not concerned merely with, for example,
monitoring of policies without a requirement that action be taken
in light of their findings.
21. We
would also wish to raise the issue of the potential monitoring
by public bodies in relation to employment (which we appreciate
is likely to be contained within the specific duties and thus
be the subject of separate regulations). We would wish to see
any such monitoring being extended to the broadest category of
worker (i.e. those who will not fall within the more limited definition
of employee in the Employment Act) to ensure that atypical workers,
who often come from disadvantaged groups, are also the subject
of any monitoring.
22. Clause
12: definition of disability. We welcome the extension of the
definition of disability to include people with HIV, MS and cancer.
We trust that the scope for regulations to exclude certain types
of cancer will not be used.
Discrimination Law Association
PO Box 6715, Rushden
NN10 9WL
Tel/fax: 01933 412337
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