Further memorandum from the Disability
Rights Commission (DDB 121)
NEW CLAUSE
15: RELATIONSHIPS BETWEEN
LOCALLY ELECTABLE
AUTHORITIES AND
THEIR MEMBERS
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.[41]
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
ie 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.
March 2004
41 See Disability Equality: Making it Happen,
pp 31-35; Jones v Post Office [2001] IRLR384; Surrey
Police v Marshall [2002] IRLR843. Back
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