DDB 24 National AIDS Trust
THE NATIONAL AIDS TRUST
WRITTEN SUBMISSION TO THE JOINT COMMITTEE
ON THE DRAFT DISABILITY DISCRIMINATION BILL
FEBRUARY 2004
1. SUMMARY
1.1. The National AIDS Trust (NAT) does
not think that the Draft Disability Discrimination Bill responds
adequately to the existing gaps and flaws of the DDA 1995.
1.2. NAT is particularly concerned with
the proposed definition of disability in the draft Bill.
- The definition fails to acknowledge
the broader social dimension and complexity of HIV-related discrimination.
HIV-related discrimination
not only affects people living with HIV, but it also extends to
people suspected of living with the virus (because of the history
and nature of the epidemic which affects predominantly certain
population groups), and those with whom HIV is associated in the
public mind. Population groups commonly associated with HIV include
gay men, sex workers, injecting drug users, Black Africans, prisoners,
family members, carers, and professionals working in the field
of HIV.
- The definition also disregards
the fact that HIV-related discrimination exacerbates existing
prejudice and discrimination, in particular racism and homophobia.
- Finally, it is argued that a
broader definition of disability is required by the EU Framework
Employment Directive.
1.3. To be effective, disability discrimination law
needs to adopt a medical and social model of disability
which covers people with impairments or functional limitations,
but also people who are perceived to have or are associated with
impairments or functional limitations.
The draft Bill should prohibit, in addition to
discrimination on grounds of HIV from the moment of diagnosis:
-Discrimination on grounds of perceived/imputed
disability;
-Discrimination on the basis of association (including
carers)
1.4. NAT also has other specific recommendations
about employment exemptions, the enforcement process and available
remedies.
2. INTRODUCTION
2.1. The National AIDS Trust (NAT) is
the UK's leading HIV and AIDS policy development and advocacy
organisation. NAT works in the UK and internationally for policies
that will prevent HIV transmission, improve access to treatment,
challenge HIV stigma and discrimination and secure the political
leadership to effectively fight AIDS.
2.2. NAT has been involved in the debates
surrounding equality law reform for more than a year, campaigning
in particular for changes to the Disability Discrimination Act
1995 (DDA 1995).
2.3. NAT welcomes the publication of
a Draft Disability Discrimination Bill and the opportunity to
make comments and recommendations on the content of this draft
Bill to this Committee.
3. HIV EPIDEMIOLOGY IN THE UK
3.1. There are more people living with
HIV in the UK than ever before, with approximately 50,000 people
infected with the virus, a third of whom remain undiagnosed.
The number of people living with HIV is still increasing
due to the combined effect of decreasing deaths as a result of
HIV treatments and increasing cases of newly acquired HIV.
3.2. The estimated prevalence of diagnosed
HIV infections increased between 2001 and 2002 by 20% to 34,300,
and undiagnosed HIV infections by 17% to 15,200. The latest figures
released by the HPA show that 5,047 new HIV diagnoses have been
reported so far for 2003 compared to 4,204 at the same time last
year. This represents an increase of 20% on 2002. When all reports
have been received, the total figure for new HIV diagnoses in
the UK in 2003 is expected to be over 7,000.
3.3. The two largest groups infected
with HIV are men who have sex with men and heterosexuals.
3.4. Since 1999, the number of new HIV
heterosexual infections has exceeded the number of new diagnoses
of homo/bisexual men, but new HIV diagnoses in gay men are expected
to reach a record of 2,000 in 2003. So far 1,414 gay men have
been diagnosed with HIV in 2003. This represents an increase on
1,195 this time last year.
3.5. The number of heterosexual infections
has significantly increased. An overwhelming majority of heterosexual
HIV infections occurred in Africa (80% of heterosexually acquired
infections occurred abroad, with 71% of those infections occurring
in Africa).
3.6. Women are the fastest growing group
of newly diagnosed people, with a significant percentage of them
being from minority ethnic communities, mainly black Africans.
In 2000, 64 % of the 1,203 women diagnosed HIV positive in the
UK were black African women.
3.7. As the number of people living
with HIV in the UK is increasing, discrimination continues to
be a major issue for people living with HIV and AIDS. In the UK,
the HIV epidemiology highlights the fact that HIV primarily affects
vulnerable and marginalised groups (i.e. gay men, Africans) who
very often already face stigma and discrimination.
3.8.The combination of HIV with another
or several factors such as race, gender and sexuality is likely
to lead to multiple discrimination or "HIV-related discrimination".
Members of marginalised groups who are living with HIV suffer
not only from the burden of having a potentially fatal disease
but also from the additional burden of being an oppressed group
in society.
3.9. The UK needs to have efficient
and adequate legislation to challenge HIV-related discrimination.
3.10. NAT does not think that the Draft
Disability Discrimination Bill responds adequately to the existing
gaps and flaws of the DDA 1995.
4. DEFINITION OF DISABILITY
4.1. NAT welcomes the broadening of
the definition of disability to cover HIV-positive people from
the moment of diagnosis.
4.2. This was a significant gap of the statute. This
flawed definition of disability disregarded the fact that being
HIV-positive and asymptomatic may not diminish a person's physical
capacities but can nevertheless substantially limit that person's
ability to work or access goods and services as a result of the
prejudices and negative assumptions of others in relation to HIV.
4.3. However, the draft Bill fails to acknowledge
the broader social dimension and complexity of HIV-related discrimination.
4.4. HIV-related discrimination not only affects
people living with HIV and AIDS, but it also extends to people
suspected of living with the virus (for example because of the
history and nature of the epidemic which tends to affect predominantly
certain population groups), as well as those with whom HIV is
associated in the public mind.
4.5. Population groups commonly associated with HIV
include gay men, sex workers, injecting drug users, Black Africans,
prisoners, family members, carers, and professionals working in
the field of HIV. The new Disability Discrimination Bill needs
to acknowledge that HIV-related discrimination has both a medical
and social dimension.
4.6. As noted in para. 3.8, multiple
discrimination is also a key element of HIV-related discrimination
which tends to exacerbate existing forms of marginalisation such
as racism, homophobia, and gender-based discrimination.
4.7. NAT would like to attract the Committee
Members' attention to the United Nations Joint Programme on HIV/AIDS
(UNAIDS) definition of HIV-related discrimination:
4.8. HIV-related discrimination is "[A]ny
measure entailing any arbitrary distinction among persons depending
on their confirmed or suspected HIV serostatus or status of health
(...) Discrimination against people living with HIV/AIDS also
extends to those with whom AIDS is associated in the public mind
(homosexuals, prostitutes, drug addicts, haemophiliacs, and family
members and associates of HIV-positive people)."(1996 Protocol
on HIV/AIDS related discrimination)
4.9. By prohibiting discrimination on
grounds of imputed/perceived HIV status and on the basis of association
(which ought to include carers), the draft Bill would provide
a comprehensive and adequate definition of HIV-related discrimination.
4.10. NAT also believes that the broadening
of the definition of disability under the DDA 1995 is required
by the EU Framework Employment Directive ("FED").
4.11. Although the FED does not provide
a definition disability, the EU Commission made clear that "the
old medical -centred approach is now giving way to a social one
which puts much stronger emphasis on identifying and removing
the various barriers to equal opportunities" for disabled
people (1996 Communication on "Equal Opportunities for Disabled
People", COM(96) 406 of 30 July 1996). Similarly in its 2003
Communication on "Towards a United Nations Legally Binding
Instruments to Promote and Protect the Rights and Dignity of Persons
with Disabilities" (COM (2003) 16 of 24 January 2003), the
Commission reiterates the importance of a social approach to disability.
4.12. By not defining disability, the
FED does not seem to exclude a social model of disability, as
it does not seem to exclude a medical model. In essence, the focus
of disability discrimination law should be the occurrence of disability
discrimination itself; such a law should not exclude victims of
discrimination through its definition of disability.
4.13. NAT also notes that the UK definition
of disability is more restrictive than the definition adopted
in other Member States. This may contravene the general principle
of uniform application of Community law throughout the EU and
its effectiveness, as well as the maintenance of equal conditions
for competition.
4.14. The UK may be exposed to questions
being referred to the European Court of Justice for a preliminary
ruling on the lawfulness of the UK definition of disability at
Community level.
4.15. To be effective disability discrimination
law needs to adopt a medical and social model of disability which
covers people with impairments or functional limitations, but
also people who are perceived to have or are associated with impairments
or functional limitations.
4.16. NAT recommends that the Bill prohibits,
in addition to discrimination on grounds of HIV from the moment
of diagnosis:
- Discrimination on grounds of perceived/imputed
disability;
- Discrimination on the basis of association (including
carers)
5. EMPLOYMENT EXEMPTIONS
5.1. The draft Bill fails to remove
some exceptions untouched by the Disability Regulations 2003.
5.2. The Armed Forces exemption should
be removed. It is possible to serve in non-combatant jobs in the
Armed Forces. The situation of HIV-positive soldiers should be
examined on a case-by-case basis.
5.3. The Bill should also cover all examining bodies,
statutory office holders, political office holders, magistrates
and school governors.
5.4. The DDA 1995 does not contain any
specific provisions on medical examinations and screening. This
means that the link between privacy and discrimination is disregarded
and that employers are "free" to violate a job applicant/employee's
right to privacy without limitations.
5.5. The Bill should prohibit pre-employment
medical examinations or questions. Medical related questions should
only be permitted in very limited circumstances (i.e. when related
to the essential functions of a job).
5.6. The draft Bill also fails to fill
in the gap left by the Disability Regulations 2003 as regards
the scope of the duty to make reasonable adjustments which does
not cover actual dismissals and omissions to act
5.7. NAT also recommends that the draft Bill introduces
a provision which aims to prevent indirect discrimination for
all disabled people who could potentially be affected.
5.8. The Disability Regulations which will come into
force in October 2004 modify the duty to make reasonable adjustments
to introduce some elements of a definition of indirect discrimination
(i.e. the duty extends from one which applies to "arrangements"
to one applying to "any provision, criterion or practice"
and which places a disabled person at a substantial disadvantage
in comparison with persons who are not disabled). However the
rest of the definition remains the same and is narrower than the
Directive's definition. In particular, the provision only applies
to situations where a disadvantage actually arises and leaves
no scope for a claim relating to an anticipated disadvantage.
6. ENFORCEMENT PROCESS
6.1. NAT is also very concerned with the fact that
the draft Bill very much retains the individual-based nature of
the enforcement process under the DDA 1995.
6.2. The majority of HIV-related cases being settled
out of court, there is virtually no jurisprudence in relation
to this type of discrimination. This fact was highlighted at Session
2 of the All-Party Parliamentary sessions on AIDS: Law and discrimination
in February 2001. Paul Ward from the Terrence Higgins Trust noted:
6.3. "We know of no cases that have come to
court under the Disability Discrimination Act but we do know a
number of cases which have been settled out of court because of
the legislation, essentially because people themselves work in
terms under their own privacy and confidentiality."
6.4. Since then, there have a very few
HIV discrimination cases taken to court, the majority of complaints
being settled out of court or withdrawn.
6.5. NAT would like the draft Bill to
introduce provisions allowing organisations and associations with
a legitimate interest in the rights of people with disabilities
to act on behalf of the complainant. This is one of the requirements
of the FED which has not been acknowledged in the Disability Regulations
2003.
6.6. The phenomenon of systemic discrimination is
also very much ignored in the present disability legislation.
The introduction of an equality duty on public authority is a
significant step towards a substantive approach of equality.
6.7. However, the enforcement process does not currently
tackle systemic discrimination.
6.8. NAT would like to attract the Committee Members'
attention to the Australian system of public inquiries which gives
the Australian Human Rights and Equality Commission (HREOC) the
power to conduct public inquiries as a means of investigating
complaints in appropriate cases.
6.9. Public inquiry is a process that should be considered
by the Committee Members to be introduced in the draft Bill. The
system of investigation would be open and public and would involve
receiving and making public submissions from parties other than
the complainant and the defendant.
6.10. The system of public inquiry provides an opportunity
to tackle systemic discrimination as well as promote awareness
and compliance with the legislation. For example, a public inquiry
could examine HIV and AIDS discrimination in one or more specific
areas. The Disability Rights Commission would be conducting public
inquiries.
7. REMEDIES
7.1. Remedies available under the DDA
1995 merely aim at obviating or reducing the adverse effect on
the complainant of any unlawful discrimination. In particular,
employment tribunals cannot make recommendations regarding the
future conduct of the respondent: e.g. removal of discriminatory
practice/policy and/or introduction of affirmative action programs
(e.g. adoption of a policy of non-discrimination on the basis
of disability, including HIV and AIDS, training of the workforce).
7.2. NAT reiterates its concern about
the overwhelming formal approach of the DDA 1995. The Draft Bill
should introduce remedies which address the group-based dimension
of discrimination.
8. CONCLUSION
8.1. NAT considers that the proposed
Draft Disability Discrimination Bill fails to address key deficiencies
of the Disability Discrimination Act 1995.
8.2. NAT is especially concerned with
the flaws of the definition of disability which disregards two
key issues: social discrimination and multiple discrimination.
8.3. It is vital that the draft Bill
shifts from an overwhelming formal approach of equality which
relies on individual disabled complainants to a model acknowledging
systemic discrimination which affect disabled people as a group.
8.4. In addition, NAT recommends that
the Bill:
- Includes provisions
on medical examinations;
- Removes the
Armed Forces exemption;
- Introduces
a provision which aims to prevent indirect discrimination;
- Includes provisions
allowing organisations and associations with a legitimate interest
in the rights of people with disabilities to act on behalf of
the complainant; and
- Provides for
remedies which address the group-based dimension of discrimination.
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