Memorandum from the Discrimination Law
Association (DDB 74)
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 focusing 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 pursuing 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"
focused 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 (ie 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.
February 2004
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