Supplementary memorandum from Rachel Hurst,
Disability Awareness in Action and Andy Rickell, the British Council
of Disabled People (DDB 123)
Written answer by Rachel Hurst to the following
question which the Committee did not have time to cover fully
on 17 March
We gather that you are critical of the notion
that discrimination does not take place if it can be shown that
the treatment or outcome in question is "justified".
Are there any circumstances where, for example, costs would be
disproportionate or other people would be put at a significant
disadvantage, and that differential treatment or outcomes for
disabled people are therefore justified?
We are perfectly happy with the term "reasonable"
in assessing whether or not an employer or service provider should
provide accommodations to ensure non-discrimination. Our problem
is with the use of the term "justification". This implies
that discrimination against disabled people can be right or vindicated.
We understand the need for exceptions and exemptions. We also
understand that if the way of ending the discrimination is unreasonable—then
of course that discrimination would not be considered unlawful—but
it does not justify the discrimination. We cannnot—if we
are a human rights society talk about justifying discrimination—that
is of itself a violation! Neither of the other non-discrimination
legislations use the term "justification". The Sex Discrimination
Act talks about certain circumstances not being considered "unlawful".
The Race Relations Act has "exceptions". We believe
that neither group would have tolerated use of the word "justification"—with
its relationship to justice, truth and rightfulness—to describe
a situation of discrimination. For instance—if a small firm
cannnot afford maternity pay (a reasonable accommodation), then
government steps in and ensures that discrimination does not take
place by providing state benefits—there is no excuse given
that because the firm is small that the discrimination is justified—it
clearly is not. The measure of reasonableness and the promotion
of accommodations are essential for disabled people to have proper
protection against discrimination. That has already been agreed
within the DDA and gives more than adequate protection to those
people whose own rights may be infringed if they were to be asked
to make unreasonable accommodations. We firmly believe that to
talk about "justifying" discrimination flies in the
face that all this country is trying to do to promote a human
rights culture.
Written answer by Andy Rickell to the following
question which the Committee did not have time to cover fully
on 17 March
The draft bill currently provides that public
authorities must have regard to the need to promote equality for
disabled people only "where opportunities for disabled persons
are not as good as those for other persons." Is this condition
necessary ?
This question is referring to the wording in
Section 49A(1)c.
This condition is in my opinion not just unnecessary,
but it would allow inequality to continue.
Services which are only provided to disabled
people, so that there is no possibility of comparing the service
with that received by non-disabled people, would if this clause
remained find themselves, perhaps unintentionally, not subject
to the promotion of equality duty. Bearing in mind the importance
of these services to enable disabled people to be fully included
in society—services such as adult social services, specialist
housing, specialist health services, specialist employment services,
specialist educational services etc—the result would be
perverse. It is essential that these services have a general equality
of opportunity ethos to ensure disabled people receive the support
they require to exercise their rights. Therefore this clause needs
to be removed."
Andy Rickell,
Director, BCODP
March 2004
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