Joint Committee on the Draft Disability Discrimination Bill

Joint Committee on the Draft Disability Discrimination Bill First Report

CHAPTER 9: CLAUSES 1, 2, 10 AND 11

Discriminatory advertisements (clause 1)

332. From October 2004 section 16B of the DDA, inserted by the DDA Amendment Regulations 2003, will make it unlawful for a prospective employer to publish a job advertisement which discriminates against an applicant because of their disability.[387] The DRC is given the power to enforce these provisions. However, section 16B does not currently prohibit third parties (eg. newspapers and magazines) from publishing a discriminatory advertisement.

DRAFT BILL CHANGES

333. In order to plug the gap, clause 1(1) of the draft bill will replace section 16B(1) of the DDA and seek to ensure that third parties are held liable for any discriminatory job advertisements published by them.

334. Third party publishers could be exempted from liability under two possible conditions: if they did not, and could not, know that the advert was prohibited (new subsection (2A)); or if they relied on a statement made by the person placing the advert that it was not unlawful and it was reasonable for them to do so (new subsection (2B)).

LIABILITY EXEMPTION

335. The Committee has received contrasting views about whether the exemption from liability under clause 1 should be retained or removed. The Greater London Association of Disabled People and the Spinal Injuries Association argued that determining whether an advert would comply with the legislation would be a fairly straightforward task and "it may be simpler to administer the legislation if we rely on the publisher to be aware of the legislation".[388]

336. The Newspaper Society argued, however, that both of the conditions which exempt third party publishers from liability should remain in the draft bill.[389] It considered that, although newspapers vet advertisements to ensure fulfilment with legal and regulatory requirements, they are "ultimately at the mercy of statements made to them, and evidence given in support of such statements, by the advertiser".[390] The Government have stated their intention to retain these provisions in the bill.[391]

337. The Government told the Committee that clause 1 is modelled on provisions in the RRA and the SDA, and ensures that all those involved in publication of a discriminatory advert are liable for their own actions.[392] However, provisions in the RRA and SDA only allow exemption from liability on one condition: if a publisher relied on a statement by the person placing the advert that it was not unlawful and it was reasonable for the publisher to rely on that statement.[393] The draft bill's additional justification, that a publisher is not liable if "he did not know, and could not reasonably have been expected to know" that the advertisement was unlawful under the provisions of clause 1, is not present in equivalent provisions in either the RRA or SDA.

338. It is unclear why this additional justification should be necessary in relation to advertisements which discriminate in relation to disability, but not those that discriminate in relation to race or sex, particularly given that the range of adverts covered by the RRA and SDA is far wider than that covered by the DDA. The Committee therefore recommends that the additional justification of ignorance set out in new subsection (2A) be removed from clause 1.

ADVERTISEMENTS RELATING TO GOODS AND SERVICES

339. Even after this bill comes into force, the provisions in the DDA regarding discriminatory advertisements will not be parallel to those in other discrimination legislation. At present, the provisions relating to discriminatory advertisements are restricted only to advertisements for employment and other matters falling within Part 2 of the DDA.[394] Under the RRA and SDA, all discriminatory advertisements are unlawful. This might include, for instance, advertisements, leaflets or notices published by or for hotels or restaurants, indicating an intention to discriminate. The CRE informed the Committee that they regularly receive complaints of discriminatory advertisements relating to goods, facilities or services. In 2002, the CRE dealt with 31 cases of discriminatory advertisements outside the field of employment, and in 2003, they dealt with 26 such cases.[395] The Committee can see no reason why the DDA should not be brought into line with other anti-discrimination legislation, and therefore recommends that discriminatory advertisements should be made unlawful in relation to the provision of goods, facilities or services under Part 3 of the DDA, as well as in relation to employment, as is the case in the RRA and SDA.

Group insurance (clause 2)

CURRENT POSITION

340. The term group insurance refers to schemes where employees are covered by insurance arranged between their employer and an insurer. Currently, discrimination by group insurance schemes is covered in two sections of the DDA. It is explicitly dealt with in section 18, Part 2 of the DDA (which covers employment), but is also covered in Part 3, which deals with discrimination by insurers in general (as providers of goods, facilities and services). The Government now consider that section 18 is "unnecessary and confusing", and has led to uncertainty about the respective responsibilities of insurers and employers for discrimination arising under the schemes.[396]

DRAFT BILL CHANGES

341. Clause 2 of the draft bill tries to simplify the situation by repealing section 18 altogether, and making clear that group insurance providers should be treated as service providers and subject to provisions under Part 3 of the DDA. Employment tribunals will continue to hear any cases brought against group insurers and employers.[397]

JOINT LIABILITY

342. Under clause 2, a group insurance arrangement is defined as "an arrangement between an employer and another for the provision by the other of facilities by way of insurance to the employer's employees or to any class of those employees".[398]

343. UnumProvident Ltd, an income protection insurer, raised concerns that as a result of this wording it "will be possible to hold the insurer jointly liable" for decisions that are taken by the employer. Whilst current regulations "state that the insurer can only be held responsible where they carry out all decisions relating to eligibility" UnumProvident suggested the new provisions "appear to remove this protection for the insurer".[399] This could result in insurers re-appraising their relationship with employers and seeking more control over decisions that are usually within the employers' domain. The Association of British Insurers also suggested that the use of the phrase "provision [by the other] of facilities by way of insurance" could cause confusion as to which arrangements fall within the scope of the bill and whether this would include, for instance, voluntary schemes.[400]

344. The Government have stated that the intention of clause 2 is to ensure that providers of group insurance schemes and employers are "each responsible for their own actions in respect of the provision of group insurance to disabled employees".[401] They have also noted that the draft bill's definition of group insurance arrangement goes wider than the current definition and is intended to cover all types of group insurance schemes.[402]

345. The Committee has considered the concerns received in evidence regarding the current wording of the draft bill, and notes the Government's policy intention that the insurer and the employer should each be responsible for their own actions. We recommend that the Government ensure that the wording of clause 2 addresses the concerns of witnesses and meets the policy intention stated by the Government.

Questionnaire procedure (clause 10)

CURRENT POSITION

346. Under section 56 of the DDA, complainants who wish to bring a claim under Part 2 (employment) may use a statutory questionnaire procedure to obtain information from the employers or prospective employers. This is intended to help them determine whether to take forward their claim.

DRAFT BILL CHANGES

347. Clause 10 extends this framework so that it can also apply to claims that would be brought under Part 3 (services etc).

EVIDENCE

348. The DCC recommended that the time limit for serving Parts 2 and 3 questionnaires after proceedings have begun should be extended to eight weeks.[403] They suggested that the current timeframe for the questionnaire procedure places disabled people who need personal assistance or communication support at a disadvantage. The Committee notes these comments and invites the Government to consider them.

Police (clause 11)

CURRENT POSITION

349. Regulation 25 of the DDA Amendment Regulations 2003 brings the police within the scope of the DDA, and gives chief officers of police vicarious liability for discriminatory actions under Part 2 DDA (employment) that are committed by their police officers.

DRAFT BILL CHANGES

350. This clause extends the vicarious liability of chief officers of police to include discriminatory actions of their officers that are captured under Part 3 DDA (services etc). This change supports the extension of the DDA, under clause 4 of the draft bill, to prohibit discrimination by public authorities in carrying out their functions.

EVIDENCE

351. The only evidence that the Committee has received from a police force is from the Metropolitan Police Service, which believes that the proposals in the draft bill are "necessary".[404] They also agreed that the proposed implementation in 2006 will give them sufficient time to ensure compliance.[405] No evidence has been received which advocates any change to clause 11.

387 Section 16B DDA, inserted by Disability Discrimination Act 1995 (Amendment) Regulations 2003 Back

388 Ev 406, para 4; Ev 311 Back

389 Ev 308, para 3 Back

390 Ev 308, para 2 Back

391 Appendix 4, clause 1 Back