Legislative Scrutiny: Equality Bill - Human Rights Joint Committee

Legislative Scrutiny: Equality Bill - Human Rights Joint Committee Contents

3. EQUALITY: KEY CONCEPTS

33. Part 2 of the Bill defines the key concepts of UK anti-discrimination law. Clauses 4 to 12 set out the "protected characteristics" which are protected by the subsequent anti-discrimination provisions of the Bill such as "age", "race" and "sex". Clauses 13 to 26 define the main types of discriminatory conduct which are to be prohibited such as "direct discrimination", "indirect discrimination" and "harassment". These key concepts are then applied in subsequent Parts of the Bill to form a unified framework of anti-discrimination law. Part 2 of the Bill is therefore of central importance. For the most part, it codifies existing legislation. However, it also extends and clarifies the scope of protection offered by discrimination law in some important respects.

Protected Characteristics

34. Clauses 4 to 12 list certain "protected characteristics", which are different forms of individual status or identity protected by the legislation. They are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Each of these characteristics is currently protected under existing British anti-discrimination law. The Bill defines and provides protection for the characteristics of race, religion or belief, sex and sexual orientation in a more or less identical manner to existing law. However, how the characteristics of age, disability, gender reassignment, marriage and civil partnership and pregnancy and maternity are defined and protected in the Bill gives rise to several important human rights issues. The issue of pregnancy discrimination in the context of education is dealt with later: the other issues are dealt with immediately below.

AGE DISCRIMINATION

35. Clause 5 provides that age is a protected characteristic. At present, age discrimination is only prohibited in the sphere of employment and occupation as a result of the Employment Equality (Age) Regulations 2006. However, the Bill greatly extends protection against age discrimination. Firstly, age is included as one of the protected characteristics covered by the public sector equality duty.[55] Secondly, the Bill also prohibits age discrimination in the provision of goods and services and the performance of public functions, as well as in the area of association and membership of clubs. This extension of protection is however subject to a very wide-ranging power conferred upon Ministers by Clause 192 of the Bill to make orders providing for exceptions to the general prohibition on age discrimination outside of the area of employment and occupation.[56]

36. In June 2009, the Government published a consultation paper, Ending Age Discrimination in Services and Public Functions, in which it sought views on what exceptions should be introduced to the general ban on age discrimination.[57] The consultation concentrated in particular upon what exceptions may be necessary in the areas of health and social care, financial services and other areas such as travel concessions and group holidays for particular ages. In her written evidence to us, the Solicitor-General indicated that a further consultation will take place on the draft orders that will be prepared setting out these exceptions if the Bill becomes law, with the aim of bringing into force the ban on age discrimination together with any orders providing for exceptions to this ban by 2012.[58] She also attempted to justify the wide-ranging powers conferred on Ministers by Clause 192 as reflecting the fact that:

37. We welcome the inclusion of age within the scope of the public sector equality duty, along with the general prohibition of age discrimination in the areas of association, the provision of services and the performance of public functions. Age discrimination constitutes an unjustified denial of the right to equality and remains a serious problem in British society. The prohibition of age discrimination in service provision and the performance of public functions will help ensure that all age groups enjoy equality of respect in how they are treated by service providers and those performing public functions.

38. We also recognise that there must be exceptions to the ban on age discrimination in certain areas, and in particular when it comes to the provision of special services and facilities to older and younger persons, such as travel concessions and group holidays. However, we are concerned that the Government has chosen to introduce these exceptions through secondary legislation and the use of the very wide-ranging powers conferred upon Ministers by Clause 192. The scope of these exceptions should be the subject of parliamentary debate and set out in primary legislation and should be carefully tailored and convincingly justified.

39. The Bill also provides more limited protection for age discrimination than for many of the other grounds in other areas. Clause 31 provides that age discrimination in the disposal and management of premises is not prohibited. Clause 81 provides that age discrimination in schools is also not prohibited. Schedule 9(8) provides that employers will still be able to maintain a mandatory retirement age. These limits on the scope of protection against age discrimination are examined in detail below.

40. Further, children receive limited protection against age discrimination under the Bill. Clause 27(1)(a) provides that protection against age discrimination in the provision of goods and services and in the performance of public functions does not apply to those under the age of 18. Children are also excluded in part from the scope of the public sector equality duty: Schedule 18(1) provides that the provision of education, accommodation, benefits, facilities and services in schools and children's homes is not subject to the requirements of the positive duty. During the course of our inquiry into Children's Rights, we received evidence from a number of witnesses who expressed concern that children and young people would not be protected from age discrimination in the provision of goods, facilities and services.[60]

41. A number of organisations, including 11 Million (Children's Commissioner),[61] Young Equals,[62] Children's Rights Alliance for England,[63] the Equality and Human Rights Commission,[64] Liberty[65] and Unison,[66] have expressed concern in their evidence to us that the exclusion of children from the scope of the general prohibition on age discrimination in the provision of services and the performance of public functions constitutes a significant gap in protection against discrimination. Young Equals suggest that the combined effect of excluding children from full age discrimination protection[67] and excluding schools and children's homes from the public sector equality duty[68] significantly weakens the legislation.

42. The Solicitor-General told us that the Government has given "careful thought" to age discrimination against children in the provision of services and the performance of public functions but has concluded that:

The Government wants to protect special and tailored services for children. Extensions of the age discrimination ban outside the workplace to children could render any service aimed at children, or particular groups of children, vulnerable to challenge under discrimination law

43. Responding to an amendment on this issue in the PBC, the Solicitor-General highlighted the need to protect the provision of age-specific services for children from legal challenge. However, the EHRC has suggested that it would be possible to both prohibit discrimination against children in the provision of services and public functions and legitimately continue to provide child-specific services by including a justification limitation for discrimination.[70] In Australia, the prohibition on age discrimination contained in the federal Age Discrimination Act 2004 applies to children under 18, subject to certain clearly defined exemptions relating to education and activities carried out in compliance with a prescribed list of statutes (for example, family law, employment programmes, electoral law and the classification of publications, films and computer games). To our understanding, this law has generated little or no difficulty for service providers.[71]

44. The total absence of protection against age discrimination for those under 18 in service provision and the limited protection in relation to the performance of public functions means that children who are subject to unjustified discrimination are left with little or no legal protection. This may prevent children enjoying full protection of their rights as set out in the UN Convention on the Rights of the Child (UNCRC).

45. In its most recent Concluding Observations on the UK's compliance with the UNCRC, the UN Committee referred to the forthcoming Equality Bill and the opportunity it presented to mainstream children's right to non-discrimination into UK anti-discrimination law. It recommended that the UK take all necessary measures to ensure that cases of discrimination against children in all sectors of society are addressed effectively.[72] The Bill represents an opportunity to incorporate fully children's protection from unjustified discrimination into UK law. In our view, the provisions of Clause 27, which have the effect of depriving children of any rights under the discrimination legislation in the fields of service provision and the performance of public functions, are unnecessarily sweeping and extensive. We accept there are many circumstances in which it is appropriate to treat adults and children differently and to provide special and tailored services directed at children of particular ages. We share the Government's concern that the legislative prohibition of age discrimination should not call into question the legality of legitimate differences in treatment as between adults and children and between children of different ages. However, the use of age distinctions can be objectively justified in anti-discrimination law, as recognised both in current legislation and in the Bill. Most of the distinctions that exist between the treatment of adults and children, or between children of different ages, are clearly capable of satisfying this test of objective justification and are highly unlikely to attract frivolous legal challenges.

46. The Government has stated that it intends to use secondary legislation to define when it may be legitimate to treat persons over the age of 18 differently on the grounds of age. We consider that the situation of children is no different and that exceptions to the general prohibition on age discrimination could also be made as required to cover age distinctions where children are involved.

47. We also consider that the public sector equality duty should apply to how children are treated in schools and children's homes. The current exclusion of the provision of education, accommodation, benefits, facilities and services in schools and children's homes from the scope of the duty as set out in Schedule 18(1) is, in our view, unnecessary. It is important that the rights of children to be free from discrimination and unequal treatment, as recognised by the UNCRC, are protected and that public authorities give due regard as to how to exercise their public functions with this objective in mind. However, the scheme of the public sector equality duty is sufficiently flexible to ensure that public authorities continue to be able to treat children differently or make special provision for children of particular ages when this is justified.

THE DEFINITION OF DISABILITY

48. Clause 6, taken together with Schedule 1, defines who is to be considered as having the protected characteristic of disability and is a disabled person for the purposes of the Bill, and proposes to replace similar provisions in the Disability Discrimination Act 1995 ('DDA'). The definition of disability is an important "control device": the Bill follows the approach adopted in the DDA in providing that only those who are disabled persons for the purposes of the legislation may bring a claim for disability discrimination. The Bill defines who is a disabled person by reference to whether they have a physical or mental impairment which "has a substantial and long-term adverse effect on [that person's] ability to carry out normal day-to-day activities". Schedule 1 clarifies this definition by providing that the effect of an impairment will be long-term if it has lasted or is likely to last "for at least 12 months" or "for the rest of the life of the person affected",[73] and that if an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, "it is to be treated as continuing to have that effect if that effect is likely to recur".[74]

49. These provisions of the Bill substantially re-enact the definition of disability contained in the DDA. However, the Bill clarifies the definition and extends protection against discrimination by removing the restrictive list of "capacities" currently set out in Schedule 1 of the DDA, which serves as an aid in defining what are "normal day-to-day activities". The Government has taken the view that this list constituted an "unnecessary extra barrier to disabled people taking cases in courts and tribunals".[75] We welcome the deletion of the list of "capacities" from the definition of disability, which will clarify the law and make it easier for claimants to demonstrate that they are "disabled" for the purposes of the legislation.

50. The revised definition of disability set out in Clause 6 has nevertheless attracted some criticism from the EHRC, Mind, the Disability Charities Consortium and other groups for adhering to the "medical model" of disability. The definition focuses upon the "medical" nature of the impairment in question and the extent to which it affects a person's ability to perform certain functions. Satisfying this test can be difficult and can prove a major obstacle to potential claimants. Both the Disability Rights Commission (prior to its dissolution) and the Royal College of Psychiatrists have noted that persons with mental health problems who wish to bring claims of disability discrimination are particularly adversely affected by a medicalised definition.[76] Similar concerns were expressed by the Disability Charities Consortium and Mind in their written evidence to us.[77] The Royal College of Psychiatrists has highlighted the particular problems faced by individuals suffering from depression, a typically severe mental impairment which nevertheless is often of relatively short duration. The requirement in the DDA[78] that a disability be "long-term" denies protection against unjustified discrimination on the basis of their disability to people suffering from depression. Mind note that they regularly have to advise employees dismissed because of "mental breakdowns" but who are well enough to return to work after a few months that they have no case under the DDA on account of the "long-term" requirement in the definition of disability.[79]

51. During our inquiry into the human rights of adults with learning disabilities, A Life Like Any Other?, some witnesses recommended that a social model of disability be adopted.[80] Individuals can be caught in the trap of being "socially" classified as disabled without meeting the "medical" definition of disability. In their evidence to us on the Bill, the EHRC suggested that the definition of disability, and in particular the requirement that an impairment must have both a substantial and long-term adverse effect on day-to-day functioning, is unduly limited and generates "fruitless litigation and legal uncertainty". In addition, it noted that the definition of disability set out in Clause 6 is "significantly narrower" than the "social model" of disability set out in the UNCRPD, which defines disability in terms of whether the person with an impairment experiences external "social" environmental or attitudinal barriers which "hinder" their full and effective participation in society on an equal basis with others.[81] Other witnesses agreed.[82] Mind suggested that the "medical" definition gives rise to unjustifiable hierarchies between different persons with disabilities, while a "social model" definition of disability would shift the "focus of attention from the severity of the medical condition to whether discrimination had occurred", providing more effective protection for the human rights of persons with disabilities.[83]

52. In her written evidence, the Solicitor-General set out the views of the Government on the definition of disability and the issue of the "social model":

The Government considers that the starting point for protection from disability discrimination must be an acknowledgment that the disabled person has an impairment of some kind. Consequently, it has ensured that the Bill has a hybrid approach which takes account of the social model. The duty to make reasonable adjustments is specifically aimed at overcoming the disabling barriers that people with impairments face in society.

53. Amendments were tabled in the PBC to delete the requirement that a disability be "long term", clarify the definition of disability and to bring individuals who had suffered serious depression of 6 months duration within the last 5 years within this definition. In response, the Solicitor-General stated that there was no real need to change the existing legislative definition, on the basis that the current wording adopted a consistent approach in respect of different types of impairments and struck the right balance between protecting the human rights of persons with disabilities and ensuring that excessive obligations were not imposed upon employers to accommodate individuals with short-term impairments.[85]

54. We consider that it is important to have a clear and workable definition of disability in the Bill, which protects those who are genuinely disabled without extending the definition of disability too far. We concur with the view previously expressed by the House of Commons Work and Pensions Committee that there are strong arguments for adopting a definition of disability in the Bill which is more in tune with the "social model" of disability set out in the UN Convention on the Rights of Persons with Disabilities,[86] which the UK Government recently ratified. It would also reflect the real life experiences of many disabled people, who may face discrimination from employers and service providers on account of their impairments even when they are insufficiently "disabled" to satisfy the medical-centred tests set out in existing UK legislation.

55. In July 2006, the Disability Rights Commission proposed that the existing definition of disability set out in the DDA should be altered to give protection from discrimination to everyone who has (or has had or is perceived to have) an impairment, without requiring the effects of that impairment to be substantial or long-term. It suggested that this new definition would bring clear benefits, including producing a simpler, more certain approach for identifying who has protection, providing better access to justice and ensuring that the focus was placed upon the fairness and reasonableness of employers and service providers rather than on the medical condition of the individual. In order to bring the UK definition closer to the "social model" of disability as reflected in the UN standard, both the EHRC and the Disability Charities Consortium recommend the deletion of the requirement that a disability be "long-term" in nature.[87] These arguments have considerable force. We recommend that the Government give serious consideration to this proposal. At a minimum, we recommend that the requirement contained in the current definition of disability that the effects of an impairment be "long term" in nature should be removed. There is little risk that the adoption of a definition of disability that is closer to the "social model" will result in abuse and the trivialisation of the status of being disabled. The justification defence to disability discrimination claims, the "substantial disadvantage" threshold which must be crossed before a claim for reasonable adjustment can be made, and the "reasonableness" requirement itself all provide protection against the potential for abuse and will protect employers against a wide expansion of liability.

GENDER REASSIGNMENT

56. Clause 7 defines who is considered to have the protected characteristic of undergoing a process of gender reassignment. It will replace similar provisions in the Sex Discrimination Act 1975 (SDA). However, the Bill extends protection against discrimination by no longer requiring a person to be undergoing a process of gender reassignment under medical supervision in order to come within the scope of protection, as is currently the case under the SDA. Clause 7 now provides that if the person "is proposing to undergo, is undergoing or has undergone a process (or part of a process)" of gender reassignment that will be sufficient. This extends protection to individuals who may have commenced the process of gender reassignment, or who have indicated an intention to undergo this process, but who have not yet come under medical supervision.

57. Press for Change (PFC) and the Equality Network have nevertheless expressed concern that Clause 7 is unclear and will leave many transsexual people unprotected.[88] In particular, both organisations argue that Clause 7 will exclude transsexual people who do not display any intention to undergo a medical process of gender reassignment, but who nevertheless choose to adopt a different gender identity. In addition, children under 16 who display gender variance may also be left unprotected, as may inter-sex persons. Both Press for Change and the Equality Network suggest that the concept of "gender reassignment" should be replaced by "gender identity", a term used in official statements produced under the auspices of the United Nations and Council of Europe. The Equality and Diversity Forum (EDF) has given evidence to similar effect.[89]

58. In the PBC, the Solicitor-General responded to concerns about the proposed definition by noting that discrimination which was based upon acts or behaviour by the transsexual person in question which might "be a precursor to an individual proposing to undergo gender reassignment" would be covered by the prohibition on discrimination based on perception implicitly set out in Clause 13.[90] She also suggested that there was a need for a "definite decision point, at which the person's protected characteristic would immediately come into being".[91] In addition, in her written evidence, the Solicitor-General emphasised that the process of gender reassignment covered by the Bill:

59. In our view, protection currently offered by existing legislation is unduly restrictive as it denies protection to those not subject to medical supervision. We therefore welcome the expanded human rights protection offered to persons undergoing a process of gender reassignment. However, we are concerned that the new definition may be interpreted in an unduly restrictive manner, as a transsexual person will only be protected from discrimination if he or she can demonstrate an intention to undergo a process of gender reassignment. This may leave individuals who cannot yet undergo a process of reassignment, such as children under the age of 16, or those for whom such a process would be of little or no relevance, such as inter-sex persons or those living in a state of gender variance, without protection. Reliance upon the prohibition of discrimination on the basis of perception to close these gaps is unsatisfactory, as this offers at best an indirect and less than clear level of protection. We recommend that the term "gender identity" replace "gender reassignment" as the relevant protected characteristic. This would offer wider protection against the prejudice and stereotyping which continue to affect many transsexual people adversely. There is little risk that protecting 'gender identity' will result in abuses, frivolous cases or the trivialisation of discrimination law, as protection will still be linked to transsexual status, rather than to appearance or conduct.

60. Amendments NC12(3) to (5), tabled by Lynne Featherstone MP and Dr Evan Harris MP, would replace the definition of the protected characteristic of gender reassignment with an expanded definition of "gender identity". We consider that these amendments deserve serious consideration.

MARRIAGE/CIVIL PARTNERSHIP

61. Clause 8 defines the protected characteristic of marriage and civil partnership replacing very similar provisions in the Sex Discrimination Act which currently provides that a person has the protected characteristic of marriage and civil partnership only if she or he is actually married or in a civil partnership. Discrimination legislation will not protect people who are in, or have been in, significant and enduring personal cohabiting relationships other than marriage or civil partnership who suffer discrimination or harassment as a result.

62. Nor will the legislation cover people who are discriminated against or harassed by reason of not being in a marriage or civil partnership. Such people are protected under discrimination law in Ireland, certain states in Australia and elsewhere.[93] In addition, Clause 13(4) provides that direct discrimination against those who are not actually married or in a civil partnership is not prohibited under the Bill. Therefore, discrimination on the basis of association with married persons or those in a civil partnership, or on the basis of perceived marital or partnership status, is not prohibited.

63. Liberty and the EHRC suggest that it would be more compatible with human rights principles not to deny protection against discrimination on the basis of marital status to those who cohabit, those who are divorced or widowed.[94] Liberty cites the decision of the House of Lords in Re P[95] as evidence that discrimination based on marital status may not comply with the human right to equality,[96] an argument echoed by the EHRC.[97]

64. In the PBC, Lynne Featherstone MP moved an amendment to Clause 8 which would have extended protection against discrimination to single and co-habiting people. Responding, the Solicitor-General highlighted the difficulty of defining when persons could to be said to be a co-habiting couple and also noted the lack of evidence that existed as to whether discrimination on the basis of marital status constituted a significant social problem. In her written evidence to us, the Solicitor-General made a similar point:

65. We consider that good arguments exist to prohibit discrimination against individuals on the basis that they are not married or in a civil partnership, including cohabiting couples in enduring relationships. This would ensure symmetry of protection for those within or outside such relationships, and protect individuals against forms of discrimination on the grounds of marital status which have existed in the past and may re-emerge again, such as the practice of discriminating against unmarried persons in promotion processes and pay awards.

66. A separate issue that arises in respect of this protected characteristic is that the degree of protection conferred by the Bill upon couples in a marriage or civil partnership is very limited, being largely confined to protection against direct and indirect discrimination in the sphere of employment and occupation. Various provisions of the Bill provide that marital/civil partnership status is excluded from protection against harassment,[99] discrimination in the provision of goods and services,[100] discrimination in the disposal, management and occupation of premises,[101] discrimination in education,[102] and discrimination in membership of associations. Liberty told us that this omission means that it will be lawful to discriminate against a person on the basis that they are married or in a civil partnership in many different fields of social activity and suggest that there is no reason why the Bill cannot prohibit discrimination against married couples or those in civil partnerships in these areas.[103]

67. In her written evidence, the Solicitor-General set out the reasoning of the Government as to why it is appropriate to confine protection to married couples and those in a civil partnership to certain areas only:

A Framework for Fairness

Responses to the consultation were equivocal on whether to keep or remove the protection. However, some responses did suggest that there were still work-related instances of discrimination on the basis of marriage or civil partnership. Some tribunal cases also support this view as they show that there are instances of discrimination where employers have a blanket policy of not allowing married people to work together and these need to be challenged. Hence, the Government considers that removing this protection may run the risk of discrimination against married people re-emerging.

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68. We recommend that the prohibition of discrimination against married persons or persons in a civil partnership should be extended to cover harassment, discrimination in the provision of goods and services, premises, education and membership of associations. This would ensure comprehensive protection against forms of discrimination on the basis of marital status that may not have been highlighted by the parties who responded to the consultation exercise but may nevertheless exist, or which may be easier to challenge using the prohibition on discrimination based upon the protected characteristic of being married or in a civil partnership, rather than other characteristics such as sex or sexual orientation.

OTHER PROTECTED CHARACTERISTICS

69. Legislation in Northern Ireland prohibits discrimination based on political opinion: legislation in some other Commonwealth and European states protects individuals against discrimination based on characteristics such as genetic predisposition, spent criminal convictions, or on socio-economic status, or on caste status. The Bill does not cover these forms of discrimination. We therefore asked the Minister whether the Government had considered extending protection against discrimination to cover discrimination based on such characteristics and, if so, why it had rejected their inclusion. The Solicitor-General provided a detailed response to our question. In summary, she told us that::

The Government had consulted on whether to include genetic predisposition in the Bill, that there was no clear evidence to suggest that discrimination was occurring in this area, but that it would keep the situation under review;
Domestic law is already clear on when spent convictions can and cannot be disclosed and there is no need for specific provision within the Bill;
The Government considered extending protection to include socio-economic status but concluded that "it would be very hard to define socio-economic disadvantage in a way that could be used to give individual rights", that this would not be the best way to address the problem and that the Bill introduced a measure designed to address the underlying socio-economic disadvantage (the socio-economic duty);
Excluding protection on the basis of political opinion has not, in the Government's view, caused problems in Great Britain, unlike in Northern Ireland;
There is insufficient evidence of a problem of caste discrimination in the UK which could be resolved by legislation in the fields that anti-discrimination law covers, although the Government is monitoring the situation.[105]

70. Some witnesses have suggested to us that, contrary to the Government's assertion, caste discrimination is a problem in the UK which legislation should prohibit.[106] We therefore asked the Solicitor-General about this in oral evidence. She reiterated that the Government had taken "significant steps" to look for caste discrimination, but that there is "no inherent problem" which could be dealt with within the categories covered by the Bill.[107] However, it is strongly arguable that caste discrimination is akin to racial discrimination, and we are concerned that this is a problem which may be hidden but real within some ethnic minority groups.

71. In their evidence to the PBC, the EHRC noted that it has a statutory duty to monitor the law and that, in its view, the vast majority of situations of discrimination would be captured by the nine existing protected characteristics of the Bill. However, it suggested that one area of potential difficulty for the future was around genetics and discrimination.[108]

72. We welcome the Government's commitment to monitoring the position of genetic predisposition and caste to see whether there is a need in the future to specify them as protected characteristics. We urge the Government proactively and regularly to review the situation and to bring forward legislation should there be evidence that further protection in these areas is required. This is an area to which we may wish to return at a later date.

The Different Forms of Discriminatory Behaviour

73. Chapter 2 of Part 2 defines the main forms of conduct that are prohibited by subsequent provisions of the Bill, namely direct and indirect discrimination, harassment and victimisation. At present, different definitions of these forms of conduct are applied in different circumstances. This makes existing discrimination law unnecessarily complex. However, the Bill now sets out standardised and clarified definitions of these different forms of discriminatory conduct, ensuring in particular that the higher level of protection currently offered against indirect discrimination and harassment in those areas of law where EU standards are relevant will apply across the full ambit of anti-discrimination law. This will remove many of the artificial distinctions that currently exist in the UK's anti-discrimination legislation.[109]

74. The Bill also strengthens protection against discrimination by removing certain technical barriers to recovery that exist in the current legislative framework. In particular, Clause 25 extends protection against victimisation by removing the requirement that a claimant show that they were treated in a less favourable manner than another person would have been in a similar situation - the "comparator" requirement. Amendments made to the Bill during PBC have clarified its provisions in respect of pregnancy discrimination and cured the serious defects contained in the original text of the Bill, in particular the apparent introduction of a defence of "reasonableness".[110]

75. We welcome the provisions of the Bill which standardise and clarify the definitions of direct discrimination, indirect discrimination, harassment and victimisation and harmonisation. This should make discrimination law more accessible and easier to understand and apply. We also welcome the levelling up of protection against indirect discrimination and harassment and the removal of the "comparator requirement" in victimisation cases. We are pleased to note the amendments made to the Bill during PBC which remedied the defective provisions relating to pregnancy discrimination which were contained in its original text.

76. However, a number of human rights issues arise in respect of certain aspects of how the different forms of discrimination are defined and are discussed below.

THE DEFINITION OF DIRECT DISCRIMINATION

77. The standard definition of direct discrimination set out in Clause 13 states that "person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others". The definition in Clause 13 replaces the phrase "on grounds of" used in previous definitions of direct discrimination with the phrase "because of". The Explanatory Notes explain the rationale for this change:

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78. Direct discrimination is a key concept in discrimination law, but some concern has been expressed as to the use of the phrase "because of" in this definition. Discrimination law experts such as Michael Rubenstein have suggested that replacement of the phrase "on grounds of" with the new phrase "because of" may cause confusion and undermine the existing well-established case-law on the definition of direct discrimination.[112] The Equality and Diversity Forum (EDF) have also raised similar concerns.[113] The House of Lords in the cases of James v Eastleigh Borough Council[114] and Shamoon v Chief Constable of the RUC[115] interpreted the phrase "on grounds of" as covering situations where a discriminator would not have subjected an individual to less favourable treatment "but for" the protected characteristic in question, and also where a characteristic was the "reason why" the less favourable treatment took place. In other words, the phrase "on grounds of" has been interpreted as covering not just situations where a discriminator deliberately treated a person in a less favourable manner because of their gender, race or another protected characteristic, but also situations where criteria based upon protected characteristics formed the basis or part of the basis of the decision to treat an individual in a less favourable manner. As Lord Goff noted in James v Eastleigh Borough Council, this has the advantage of avoiding "complicated questions relating to concepts such as intention, motive, reason or purpose…"[116] However, Michael Rubenstein suggests that the replacement of "on grounds of" with the phrase "because of" may encourage courts and tribunals to place undue emphasis on the subjective intent, purpose or motive of the alleged discriminator rather than focusing on the objective rationale for the actions in question, as required by the existing case-law.[117] The new phrasing may also confuse the question of causation.[118]

79. In the PBC, an amendment was tabled by Mark Harper MP to replace "because of" with "on grounds of".[119] In response, the Solicitor-General stated that both phrases were "synonymous" and equally indicative of causation, but the use of "because of" would make the legislation more accessible to non-specialists.[120] She stated "there is no change in the meaning from the change of words".[121]

80. We consider that the previously used test in direct discrimination of "on the grounds of" has acquired a clear and definite interpretation through case-law. The Government is to be applauded for its concern for attempting to ensure the definition of direct discrimination is phrased in accessible terms. However, little is gained by replacing "on grounds of" with "because of". "On grounds of" is both readily comprehensible and has the advantage of being a well-established term of art. Replacing this phrase with "because of" risks the emergence of alternative interpretations and may undermine a clear and well-established legal position which ensures rigorous and clear protection against direct discrimination. We consider that it is strongly arguable that the definition should be amended accordingly.

DISCRIMINATION ON THE BASIS OF ASSOCIATION AND PERCEPTION

81. The Explanatory Notes explain that the new definition of direct discrimination in Clause 13 is intended to be "broad enough to cover cases where the less favourable treatment is because of the victim's association with someone who has that characteristic (for example, is disabled), or because the victim is wrongly thought to have it (for example, a particular religious belief)".[122] These forms of discrimination are often referred to as discrimination based on association and perception.

82. Previously, discrimination based on association with someone of a particular age or having a particular disability was not explicitly prohibited by UK discrimination law. Discrimination on the basis that someone was perceived to be disabled was also not prohibited.[123] However, in the recent case of Coleman v Attridge Law,[124] the European Court of Justice interpreted Directive 2000/78/EC as meaning that the prohibition of direct discrimination laid down by the Directive "is not limited only to persons who are themselves disabled" and also requires member states to prohibit discrimination in the field of employment and occupation which is based on association with a person with a disability.

83. The Minister for Equality, the Rt Hon Harriet Harman QC MP, announced on 2^nd April 2009 that the Equality Bill would prohibit discrimination which is based upon association with a person who has any of the protected characteristics set out in the Bill, or on the basis that a person is perceived to possess any such characteristics.[125] As the Explanatory Notes make clear, Clause 13 is drafted so as to give effect to this goal. However, Clause 13 does not expressly prohibit discrimination based on association or perception: instead, it contains a general prohibition of less favourable treatment inflicted by A on B "because of" a protected characteristic. The Government considers that this wording is sufficient to cover discrimination based on association and perception, as the prohibition of direct discrimination in Clause 13 is not just confined to situations where individuals themselves possess a protected characteristic (except in the case of the characteristic of marriage and civil partnership), but also covers situations where discrimination against an individual takes place "because of" a protected characteristic.[126]

84. However, the Discrimination Law Association, Carers UK, the Equality Commission for Northern Ireland and the EHRC have all expressed support for the inclusion of an express prohibition on discrimination on the basis of association and perception.[127] In the PBC, an amendment to this effect was tabled by Dr Evan Harris MP. In response, the Solicitor-General highlighted the concern that specifying that discrimination on the basis of association and perception was banned could result in a narrower interpretation being given to the general prohibition on direct discrimination:

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85. In her written evidence to us, the Solicitor-General set out the Government's reasoning in detail:

Race Relations Board v Applin

Mandla v Dowell Lee

Showboat Entertainment Centre Ltd v Owens

English v Thomas Sanderson Ltd

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86. In our view, the extension of protection against discrimination based on association and perception across all the protected characteristics will further the protection of human rights. In particular, it will ensure greater protection against discrimination for individuals with caring responsibilities for disabled persons, children and older persons. It will also provide important protection for individuals who might be perceived to be involved in a process of gender reassignment, or to be of a different gender, sexual orientation, age, religion or ethnicity than their own, or who associate with friends and acquaintances who possess a protected characteristic.

87. However, we are concerned as to how the text of the Bill makes provision for this extension of protection. If the interpretation given by the UK courts to the phrase "on grounds of" in cases such as Showboat is carried across and applied to the new phrase "because of" in the definition of direct discrimination in Clause 13, as the Government has suggested will happen, then the Bill will achieve the Government's goal of prohibiting discrimination based on association and perception. However, the lack of an explicit prohibition of discrimination based on association and perception on the face of the Bill makes the legislation less clear and, in the Government's own words, less "accessible to non-specialists" and less "accessible to the ordinary users of the Bill". While the current formulation in Clause 13 is elegant, the absence of such an explicit prohibition also risks leaving victims unaware of their legal rights and may generate uncertainty among employers and service providers. The insertion of express provisions prohibiting discrimination based on association and perception would clarify the legal position and make the Bill more comprehensible. This could be accompanied by guidance to make clear that the inclusion of this prohibition should not be interpreted as limiting the scope and range of the general prohibition of direct discrimination contained in Clause 13. This could meet the Government's concerns about inserting such an explicit provision into the Bill and contribute towards clarifying its scope and content. The extension of protection against association and perception marks a considerable expansion of human rights protection: in our view, it is important that its existence is clearly indicated on the face of the Bill. We would support an amendment that would have this effect.

Discrimination Against Carers

88. By extending protection against discrimination based upon association, the Bill will ensure greater protection for individuals with caring responsibilities for disabled persons, children and older persons. However, discrimination law expert Michael Rubenstein has suggested that such an extension will only enable a carer to bring a discrimination claim where an employer or service provider treats the carer less favourably on the basis of a protected characteristic of the person being cared for, such as if a carer is subject to less favourable treatment on the grounds that the person being cared for is disabled, as in the Coleman case,[130] or of a particular age.[131] In contrast, if an employer subjects all employees taking time off for caring reasons to less favourable treatment, regardless of the characteristics of the person being cared for, this would appear not to give rise to a claim, as the discrimination will not be based upon association with a person possessing a protected characteristic. In the Republic of Ireland, discrimination legislation includes carer status as a protected characteristic and prohibits direct and indirect discrimination, harassment and victimisation of carers.

89. The Bill also does not require employers to make reasonable adjustments in favour of carers. The House of Commons Work and Pensions Committee has recommended that carers should be given a legal right to request reasonable accommodation, to ensure their effective participation in the workplace,[132] having previously suggested that the Bill should give carers the protection they currently lack in employment, the provision of goods, facilities and services and through public sector equality duties.[133]

90. In her written evidence, the Solicitor-General explained that the Government had not been persuaded of the need to provide additional protection for carers:

The consultation paper on proposals for the Bill indicated that the Government was not persuaded of the need to create broad-based freestanding discrimination legislation for carers; and that it was considered to be more appropriate to continue with targeted provisions and specific measures instead. The Government asked for comments on this approach and, after considering the responses received, decided not to extend protection against discrimination specifically because of parenting or caring responsibilities. The main reason is that, unlike the other protected characteristics, the role of a carer primarily concerns what a person does, rather than who they are. The Government continues to believe that measures such as the right to request flexible working are better suited to supporting carers than the provision of an additional protected characteristic in discrimination law.

134

91. Carers perform crucial work, shouldering the burden of providing support and care for many of society's most vulnerable individuals. Their work and commitment plays a crucial role in ensuring respect for the right to human dignity of those they care for. In so doing, they often pay a price in their working lives and chosen careers and may at times face arbitrary and unfair discrimination. However, whilst carers have the right in certain circumstances to request flexible working, at present they have very limited legal protection. We therefore welcome the extension of protection for carers that the Bill provides through the prohibition of discrimination by association. This will ensure greater protection for individuals with caring responsibilities for disabled persons, children and older persons. However, the protection offered is limited. In particular, a carer may face serious difficulties in showing that an employer or service provider discriminated on the basis of his or her association with a person with a protected characteristic. In addition, the Bill appears to leave those with caring responsibilities exposed to the threat of discriminatory treatment which is based on their status as carers, as distinct from discrimination based on the characteristics of those they care for.

92. Carers UK have highlighted the ongoing difficulties faced by many carers in their working life and in their interaction with public authorities.[135] In our view, carers should be provided with greater protection against discrimination and other forms of unfair treatment. The right to request flexible working that carers currently enjoy is important and provides some opportunity for carers to seek adjustments in their workplace, but more comprehensive and far-reaching protection appears to be necessary. In addition, we are not persuaded by the Government's argument that carers choose their status and therefore anti-discrimination law is not a suitable tool for protecting them against unfair treatment. This does not reflect the position of many carers, in particular younger persons with caring responsibilities and those from less well-off socio-economic backgrounds, who often have little real choice when they assume caring responsibilities. In our view, the crucial social role performed by carers justifies enhanced legal protection. As a result, we recommend that the Government extend the Bill to provide greater protection to carers and give serious consideration to introducing a form of reasonable accommodation duty upon employers where appropriate.

COMBINED DISCRIMINATION: DUAL CHARACTERISTICS

93. After the Bill was published, the Government consulted on the possibility of extending protection from discrimination to a combination of two protected characteristics.[136] Following the conclusion of the consultation, the Government introduced a new clause in the PBC which protects from discrimination due to a combination of two protected characteristics.[137] When introducing the new clause, the Solicitor-General provided an example of the type of situation in which combined discrimination may arise:

138

94. Giving evidence to the PBC, Maleiha Malik from the Muslim Women's Network and Reader in Law at King's College London explained the advantages of multiple discrimination protection:

139

95. Whilst welcoming the extension of protection to a combination of two grounds, some witnesses have suggested that multiple discrimination should not be limited to two grounds alone but should relate to an unlimited number of grounds.[140] Witnesses also suggested that protection should be extended to encompass indirect discrimination and harassment as well as direct discrimination.[141] Race on the Agenda and the National Aids Trust recommended that if the Government restricts the protection to two grounds, it should review the legislation after two years to ascertain whether it remains appropriate to limit it in this way.[142]

96. We asked the Solicitor-General whether restriction to two grounds would mean that individuals subject to other forms of multiple discrimination might be denied legal protection against unfair and unequal treatment, why indirect discrimination or harassment on multiple grounds will not be prohibited and why the consultation could not be concluded before the Bill was published.[143] In her reply, the Solicitor-General relied on evidence from Citizen's Advice that the large majority of cases of discrimination concern one or two protected characteristics. She stated:

144

97. She also suggested that increasing the number of grounds would make the law more complex and increase the burdens for employers. The Solicitor-General stated that there is no evidence of a need to prohibit indirect discrimination or harassment on multiple grounds.[145] In the PBC, she elaborated on this, noting that, although the Government's view was that harassment claims were not being prevented from succeeding under existing law by their limitation to one ground, the extension to the definition of harassment widened the provision and would provide greater protection.[146] She suggested that extending protection to indirect discrimination would be a disproportionate burden on businesses and employers, given the lack of evidence of need.[147] In her oral evidence to us, the Solicitor-General agreed, however, that if in due course it becomes clear that it is necessary to widen the number of grounds, or to extend coverage to indirect discrimination and harassment, the Government would consider doing so.[148]

98. We welcome the widening of protection from discrimination to a combination of two grounds. We consider that this will enhance the human rights of individuals who have been discriminated against. Whilst, in our view, combined discrimination on two grounds should not be an excessive burden to businesses and employers, clear and accessible guidance is required in order to ensure that those who are required to comply fully understand their legal obligations. We urge the Government to keep the situation actively under review, and to give serious consideration to extending protection to more than two grounds in the future.

99. However, we are concerned that combined discrimination will apply only to direct discrimination and not to other forms of discrimination, such as indirect discrimination and harassment, which, in our view, could benefit from the additional protection that extension beyond a single ground would provide. We also note, with disappointment, that maternity, pregnancy, marriage and civil partnership are excluded from the scope of the new clause. We call on the Government to explain in detail why it is unwilling to extend combined discrimination to indirect discrimination and harassment and why maternity, pregnancy, marriage and civil partnership are excluded from this area.

HARASSMENT

The Definition of Harassment

100. Clause 25 defines harassment as follows:

(1) A person (A) harasses another (B) if—

(a) A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect mentioned in subsection (2),

(b) A engages in any form of unwanted verbal, non-verbal or physical conduct of a sexual nature that has that purpose or effect, or

(c) because of B's rejection of or submission to conduct (whether or not of A), A treats B less favourably than A would treat B if B had not rejected or submitted to the conduct.

(2) The purpose or effect is—

(a) violating B's dignity, or

(b) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

(3) In deciding whether conduct has that effect, each of the following must be taken into account—

(a) the perception of B;

(b) the other circumstances of the case;

(4) For the purposes of subsection (1)(c), the conduct is—

(a) conduct mentioned in subsection (1)(a), if the relevant protected characteristic is gender reassignment or sex;

(b) conduct mentioned in subsection (1)(b).

101. This clause provides a single, uniform definition of harassment. This new definition will extend protection against discrimination and clarify the scope of existing discrimination law by providing that the unwanted conduct in question may constitute harassment if it is "related to" a protected characteristic. Existing legislation requires unwanted conduct to be "on the grounds of" a characteristic, which is a more restrictive definition: the new definition contained in Clause 25 is wider in scope and should ensure that harassment which is not directed specifically at a claimant or which is based on association with a protected characteristic is prohibited. This new definition also better reflects the requirements of the relevant European legislation.

102. The new definition retains the "disjunctive" approach adopted in existing UK legislation, whereby a person needs to show either that their dignity was violated by the unwanted conduct, or that an intimidating, hostile, degrading or offensive environment was created as a result of it. In contrast, the definition contained in the relevant European Directives requires both of these conditions to be satisfied, a requirement referred to as the "conjunctive" approach.[149] The disjunctive approach reflects existing case-law and has been adopted in successive anti-discrimination legislation since 2003.[150] It also offers more extensive protection against discrimination than the conjunctive approach: while at times the difference between both approaches may be marginal, given that conduct which violates a person's dignity will often also create an intimidating or offensive environment for that person, there may be circumstances in which one but not the other condition would be satisfied, which would satisfy the disjunctive test but not the conjunctive. The Solicitor-General suggested that to adopt the conjunctive approach in domestic discrimination law now would risk breaching the principle of non-regression[151] in European law.[152]

103. Clause 25(3) introduces a new test for determining when conduct violates a complainant's dignity or has created an intimidating or hostile environment. It requires both the claimant's subjective perception and the objective circumstances of the case to be taken into account. In her written evidence to us, the Solicitor-General explained:

153

104. The Explanatory Notes to the Bill state that when applying this test, "courts and tribunals will continue to be required to balance competing rights on the facts of a particular case; this would include consideration of the value of freedom of expression (as set out in Article 10 of the ECHR) and of academic freedom".[154]

105. In our view, the definition of harassment set out in Clause 25 clarifies and extends existing protection against harassment while striking an appropriate balance between protecting the right to freedom of expression (in Article 10 ECHR and other international instruments) and the right to equality (in Article 14 ECHR, Article 26 ICCPR and other international treaties). This definition of harassment should be applied by courts and tribunals in the light of the relevant ECHR case-law on the Article 10 right to freedom of expression. However, a more restrictive definition of harassment on the basis of sexual orientation may be appropriate in the context of service provision and the performance of public functions.

Harassment on the Grounds of Marriage/Civil Partnership and Pregnancy

106. Clause 25(5) provides that behaviour that satisfies the definition of harassment is prohibited in respect of all the protected characteristics, except for marriage and civil partnership, and pregnancy or maternity. Individuals who are subject to harassment on the grounds of pregnancy or their marriage/partnership status are therefore not protected. The EHRC has criticised this omission, on the basis that "these are some of the most distressing forms of behaviour to people who may be acutely vulnerable".[155] The Commission also notes that:

156

107. In her written evidence to us, the Solicitor-General outlined the Government's reasoning in respect of the omission of protection against harassment related to pregnancy or marriage/partnership status:

Discrimination because of marriage and civil partnership is prohibited in order to address very narrow circumstances in which some employers still adopt policies which may discriminate against married people or civil partners: for example, where employers do not allow married people to work together. However, the Government is not aware of any evidence that people are harassed in the workplace because they are married or a civil partner. It does not therefore consider there is a need for such protection. If a civil partner is harassed because of their sexual orientation, protection is already provided.

With regard to pregnancy and maternity, any harassment that a woman is subjected to will be covered by the protection against harassment related to sex. The Government therefore considers that specific protection against harassment because of pregnancy or maternity is unnecessary and would add no value.

157

108. We consider that strong arguments exist for prohibiting harassment on the grounds of being married or in a civil partnership, and harassment on the grounds of pregnancy or maternity. It would ensure comprehensive protection against forms of discrimination on the basis of marital status, pregnancy or maternity which may not have been highlighted by the parties who responded to the consultation but may nevertheless exist. It would also eliminate confusing distinctions between the different characteristics, thereby improving the clarity of the legislation. In addition, it may make it easier to challenge harassment based on these characteristics rather than having to rely on the roundabout route of attempting to make out a case based on the characteristics of sex or sexual orientation.

109. Clause 28(8) substantially re-enacts existing legislation and exempts harassment related to religion or belief or sexual orientation in the provision of services or the exercise of public functions from the general prohibition on harassment. Similar exemptions exist in the field of the disposal, management and occupation of premises,[158] and in education in schools.[159] The absence of a prohibition of these forms of harassment reflects concerns expressed during parliamentary debates in the course of the passage of the Equality Act 2006 that prohibiting harassment based on religion or belief or sexual orientation might have a disproportionate impact upon the Article 10 ECHR right to freedom of expression.

110. In its written evidence to us, the Church of England suggested that prohibiting harassment in the provision of goods and services on the grounds of religion or belief or sexual orientation may open the door to legal challenges to religious practices or symbols, such as grace before meals, or the preaching of religious doctrine on issues such as homosexual behaviour, on the basis that they might create an "offensive" environment for non-believers or members of other religions.[160] The Church of England also highlighted the breadth of the definition of harassment contained in Clause 25, in particular the reference to the creation of an "intimidating, hostile, degrading, humiliating or offensive environment", and the provisions of Clause 25(3) which provide that the subjective perspective of the claimant and the effect of the conduct in question should be taken into account in assessing whether discrimination took place.[161] It suggested that any prohibition on harassment in the field of service provision related to religion or belief or sexual orientation that retained these elements would be excessively wide and far-reaching, potentially threatening the rights of religious believers to exercise their Article 10 ECHR right to freedom of expression and Article 9 ECHR right to freedom of religious belief.[162]

111. In contrast, other groups have expressed concerns about the lack of protection against harassment related to religion or belief or sexual orientation outside the sphere of employment and occupation. In his written evidence, the discrimination law expert Barry Fitzpatrick referred to the Preamble of the Yogyakarta Principles[163] which highlighted the role played by harassment on the grounds of sexual orientation in undermining the integrity and dignity of those subject to it, and suggested that there are no particularly serious reasons for failing to prohibit such harassment in the fields of service provision and the performance of public functions.[164]

112. In our Report on the Sexual Orientation Regulations we acknowledged that prohibiting harassment on grounds of religion or belief gives rise to concerns about the impact on freedom of speech, but we considered harassment on grounds of sexual orientation to be different because, like sex and race, sexual orientation is an inherent characteristic.[165] We concluded that harassment related to sexual orientation should be prohibited in the fields of service provision and the performance of public functions, but that a more precise and narrower definition of harassment should be applied in this context in the interests of reducing the risk of incompatibility with the rights of freedom of expression and freedom of religion and belief.[166] Barry Fitzpatrick suggested that such a narrower definition of harassment could be achieved in several different ways, for example by deleting the adjective "offensive" from that part of the definition of harassment set out in Clause 25 which refers to the creation of an "intimidating, hostile, degrading, humiliating or offensive environment".[167] An alternative could be to apply varying definitions of harassment in different circumstances. A very narrow and limited definition of harassment, perhaps framed just in terms of creating a "degrading environment", could be applied in "open" environments where individuals were free to come and go, while a much narrower definition could be applied to acts which took place in a "closed" environment where individuals are under the sustained supervision and direction of those who direct or control the environment, such as a prison. Mr Fitzpatrick also suggested that specific exceptions could be introduced to protect the expression of religious belief: these could presumably for example include "preaching" or "affirmation of belief" exceptions.[168] However, the Church of England suggested that as long as consideration is given to the effect of harassment on the claimant, a narrower definition of harassment could still endanger freedom of expression and freedom of religion and belief.[169]

113. In her written evidence to us, the Solicitor-General explained the Government's position:

The Government has ruled out using a narrower definition of harassment where European law does not apply, because one of the key aims of the Bill is to simplify and harmonise the law. Introducing a two-tier approach to harassment would introduce new and, in the Government's view, unnecessary legal complexity.

170

114. We consider that the absence of an explicit prohibition on harassment related to sexual orientation in the areas of service provision, the performance of public functions, and disposal, management and occupation of premises represents a significant gap in the protection against discrimination offered by the Bill. It leaves individuals without clear protection against demeaning and degrading harassment in important areas of their life. This may give rise to issues under the prohibition of discrimination (Article 14 ECHR) read in conjunction with the right to respect for private and family life (Article 8 ECHR), to freedom of thought, conscience and religion (Article 9 ECHR) or the prohibition on inhuman or degrading treatment (Article 3 ECHR).[171]

115. As currently framed, the Bill may offer some protection against harassment as a result of the general prohibition against direct and indirect discrimination on the grounds of sexual orientation: case-law has established that harassment that constitutes "less favourable treatment" may in certain circumstances constitute direct discrimination. However, the extent to which this is the case remains unclear. As a result, the absence of explicit provisions on harassment relating to sexual orientation that takes place in the course of service provision or the performance of public functions leaves the legal position unclear and ambiguous, to the benefit of neither service users nor service providers.

116. The Northern Ireland High Court in its judgment in the Christian Institute judicial review of the harassment provisions of the Equality Act (Sexual Orientation) Regulations (NI) 2006, which prohibit harassment, even under the wide definition, on the grounds of sexual orientation in service provision and the performance of public functions, concluded that these provisions could be interpreted and applied in a manner which respected the Article 10 ECHR right to freedom of expression and the Article 9 ECHR right to freedom of religion and belief.[172] Mr Justice Weatherup in his judgment gave guidance as to how the definition of harassment in the 2006 Regulations (which is very similar to the definition set out in Clause 25 of the Bill) could be applied in a manner compatible with these rights.

117. Given the guidance provided by the Northern Ireland High Court in the Christian Institute judicial review, it would appear that a prohibition on harassment related to sexual orientation can be applied in a manner compatible with the ECHR Article 9 and 10 rights (right to freedom of religion and freedom of expression) in the areas of service provision and the performance of public functions.

118. A narrower definition of harassment would however provide a more precise level of protection while giving clear protection to Article 9 and 10 ECHR rights. As we have previously noted, "[c]onduct which has the purpose or effect of 'violating dignity' or creating an 'offensive environment' potentially covers a very wide category of conduct given the inherent vagueness of the terms 'dignity' and 'offensive'".[173] This inherent vagueness may have a potentially greater "chilling effect" on freedom of expression if applied in the context of service provision and the performance of public functions than it does in the context of employment and occupation, where the "closed" environment of a workplace requires greater consideration to protecting the Articles 14, 8 and 3 ECHR rights of employees who face harassment. We reiterate our previous conclusion that a more precise and narrow definition of harassment should be applied in this context in the interests of reducing the risk of incompatibility with the rights to freedom of expression and freedom of religion and belief.[174] We are of the view that language or behaviour that in respect of sexual orientation or gender identity violates someone's dignity or creates an environment that is "humiliating, threatening, degrading or offensive" is not justified in schools or in the provision of public services. We therefore recommend that protection from harassment be available on the grounds of sexual orientation and gender identity in schools using the narrower conjunctive definition as there is a "captive population" and vulnerable population at risk and there is an established problem of bullying and harassment in this area. We also recommend that protection from harassment be available on the grounds of sexual orientation using the narrower conjunctive definition in the provision of public services as those who use public services may also be "captive populations" and vulnerable.

119. Clause 38 makes an employer liable for failing to take steps to prevent harassment by third parties against employees, where the employer "failed to take such steps as would have been reasonably practicable" to prevent the third party carrying out the harassment. However, Clause 38(3) provides that this only applies where the employer knows that the same employee has been harassed on two prior occasions. This could be seen as permitting employers excessive leeway before they are required to respond to third-party harassment. We consider that the threshold requirement should be reduced to one previous incident, or that this requirement should be replaced with a provision that an employer will be liable when they ought reasonably to have been aware of the risk of third-party harassment.

DISCRIMINATION RELATED TO DISABILITY

120. The Bill substantially re-enacts existing legislation in prohibiting direct discrimination on the grounds of disability and requiring employers and service providers to make reasonable accommodation for persons with disabilities. Clause 20 of the Bill taken with Schedules 2 and 8 strengthen and standardise the reasonable accommodation duty, in particular by providing for the duty to be triggered when disabled persons are put at a "substantial disadvantage". This single threshold replaces the two separate thresholds set out at present in the DDA and extends protection against discrimination by replacing the previous threshold requirement that reasonable accommodation could only be triggered in the context of the provision of goods and services when a disabled person found access to be "impossible or unreasonably difficult".

121. The Bill also attempts to redress some of the consequences of the House of Lords' judgment in London Borough of Lewisham v Malcolm, which made it more difficult to establish the existence of less favourable treatment related to disability, an important form of prohibited discrimination under the DDA.[175] The Bill prohibits indirect discrimination on the grounds of disability, which represents a considerable extension of protection for the rights to equal treatment and respect of disabled persons.

122. Clause 15 of the Bill also provides that it is discrimination to treat a disabled person in a particular way which, because of his or her disability, amounts to treating him or her badly and cannot be shown to be objectively justified. This appears to be an attempt to re-establish the protection against disability discrimination which had been eroded by the Malcolm decision, and to clarify elements of the law in this complex area. In her written evidence to us, the Solicitor-General set out what the Government intended to accomplish by the insertion of Clause 15:

because of

The Government considers that the removal of the need to establish a comparator, which is currently required by the disability-related discrimination provisions in the DDA, will strengthen the legislation by making it easier for a disabled person to show that he or she has been subject to detrimental treatment. The application of indirect discrimination provisions to disability will further strengthen protection from discrimination for disabled people because it will assist in tackling and preventing systemic forms of discrimination that would have detrimental effects on particular groups of disabled people.

176

123. However, the EHRC has questioned whether the prohibition of "discrimination arising from disability" in Clause 15 as currently worded accomplishes what the Government intends to bring about.[177] The prohibition of less favourable treatment that arises "because of" a person's disability may not cover treatment which would constitute a detriment for anyone, or which is not detrimental "because of" a specific disability per se. If this is the case, this would mean that the Bill would provide less protection against discrimination on the grounds of disability, or at least more uncertain protection, than was provided by the DDA prior to the decision in Malcolm. In the PBC, the Government undertook to re-examine these provisions.[178]

124. We welcome the provisions of the Bill which clarify and extend protection against discrimination related to disability, in particular the strengthening and clarification of the threshold or trigger point of the duty to make reasonable accommodation set out in Clause 20, and the extension of protection against indirect discrimination that relates to a person's disability provided for in Clause 18. However, the provisions of Clause 15 providing for the prohibition of "discrimination arising from disability" as currently worded appear excessively narrow in scope and do not adequately redress the gaps in protection left by the Malcolm decision. We welcome the Government's readiness to re-examine these provisions and look forward to the outcome of its deliberations.

The Asymmetrical Nature of Disability Discrimination

125. Clause 13(3) provides that it is not discrimination to treat a disabled person differently from someone who does not have that particular disability "in a way which is permitted by or under this Act". This clause appears to have been inserted to retain the "asymmetrical" nature of UK anti-discrimination legislation, whereby non-disabled persons may not bring an action challenging more favourable treatment of disabled persons. It also appears to be designed to ensure that providing more favourable treatment to particular categories of disabled persons will not be open to challenge. In the PBC, the Government also undertook to re-examine this provision.[179]

126. We consider it to be important for the "asymmetrical" nature of UK disability discrimination law to be retained and to ensure that the provision of special assistance to particular categories of disabled persons is not inadvertently exposed to legal attack. The UN Convention on the Rights of Persons with Disabilities makes clear that states must take action to accommodate the special needs of disabled persons in order to secure their rights to equality and human dignity. To ensure the substantive equality of disabled persons, it will often be necessary to treat them differently from others. The "asymmetrical" nature of UK disability discrimination law currently reflects this requirement and in so doing gives effect to international human rights standards.

127. However, as currently worded, the provisions of Clause 13(3), which state that it is not discrimination to treat a disabled person differently from a non-disabled person "in a way which is permitted by or under this Act" are uncertain and ambiguous. Many forms of "asymmetrical" treatment of disabled persons are not specifically "permitted by or under this Act". At present, the Bill does not clearly establish the "asymmetrical" nature of protection against disability discrimination. We welcome the undertaking given by the Government at Committee stage to revisit the wording of this provision.[180]

The Comparator Requirement

128. The specific nature of disability discrimination may also not be adequately reflected in the current provisions of Clause 23 of the Bill, which define who is to be considered an appropriate comparator when determining whether someone has been subject to less favourable treatment. Clause 23(1) provides that when comparing the treatment of different individuals or groups, there "must be no material difference between the circumstances relating to each case". This standard approach to defining the "comparator requirement" must be modified when it comes to cases of disability discrimination, as disabled persons often face discrimination precisely as a result of a failure by employers or service providers to make accommodation to reflect the different circumstances in which they find themselves when compared to non-disabled persons who have similar abilities and qualifications.

129. Clause 23(2) attempts to reflect this by providing that in disability discrimination claims, "the circumstances relating to a case include a person's abilities". However, the EHRC suggests that this wording does not appear sufficiently clear and risks causing confusion. It has highlighted the potential for Clause 23 as currently worded to introduce a more exacting "trigger" into the duty to make reasonable adjustments than exists at present, which would result in a retrogressive lowering of protection.[181] In the PBC, the Government appeared to agree to re-examine and if necessary to re-draft Clause 23 to remedy this problem. We welcome this apparent commitment.

130. The comparator requirement has consistently generated problems in anti-discrimination law, as illustrated by the House of Lords' decision in Malcolm and the difficulties faced by the English courts in addressing the issue of pregnancy discrimination in the case-law of the 1970s and the 1980s.[182]

131. The comparator requirement in UK disability discrimination law has often generated unforeseen difficulties and complexities which have restricted the effective protection of the right to equality. The unsatisfactory wording of Clause 23 as currently drafted is an example of this. We welcome the Government's undertaking to re-examine this wording. We consider that there is a need for clear statutory language outlining how courts and tribunals are to apply the comparator requirement.

The Knowledge Requirement

132. Clause 15(2) provides that the proposed prohibition of "discrimination arising from disability" does not apply if the employer or service provider shows that they "did not know, and could not reasonably have been expected to know, that B had the disability" in question. This "knowledge requirement" is a new statutory provision, which was not contained in the DDA. However, it reflects the interpretation of the equivalent provisions of the DDA adopted by the House of Lords in the Malcolm case.

133. The insertion of this knowledge requirement has been criticised by the Disability Charities Consortium, Mind and the Leonard Cheshire Trust on the basis that an employer or service provider who adopted a hostile stance towards persons suffering from illness or other impairments can now avoid liability unless a clear indication existed that the person concerned had a disability.[183] Disabled persons, and in particular those with mental disabilities, are often slow to advertise their existence. The Leonard Cheshire Trust describe it as "one of the most damaging aspects of the judgment reached in Malcolm".[184]

134. The EHRC have suggested that the inclusion of this knowledge requirement could be balanced by the insertion of an amendment to the effect that "the circumstances in which A shall be taken to be reasonably expected to know about B's disability include where A has failed to ask B if he has a disability". The Commission suggests that this would ensure that "those with responsibilities under the Bill take a pro-active approach to ensure that they are aware - or as reasonably aware as they could be - of whether an individual has a disability, and to prevent 'deliberate ignorance' being employed to justify discrimination".[185]

135. We consider that a strong case exists for providing on the face of the Bill that the knowledge requirement will be deemed to be satisfied when an employer or service provider failed to ask a claimant whether they suffered from a disability when it was reasonable to do so. If supplemented by guidance from the EHRC, this could enhance protection against disability discrimination by ensuring that employers and service providers cannot rely upon deliberate ignorance or a "don't ask, don't tell" policy to evade their obligations.

Pre-Employment Health Questionnaires

136. The National AIDS Trust suggests that a prohibition on the use of pre-employment health questionnaires before a job offer has been made would enhance protection against disability discrimination.[186] At present, evidence exists that the use of such questionnaires has a powerful deterrent effect upon potential applicants who are disabled, often driving them towards specific disability-friendly environments or to hide their impairment.[187] Limiting the use of such questionnaires was a key objective of the US Americans With Disabilities Act 1990, which has considerably restricted their use to simply assessing whether an applicant can perform the job in question. However, at present, unless the use of such questionnaires can clearly be linked to less favourable treatment on the grounds of disability, UK discrimination law does little, if anything, to regulate their use.

137. In response to amendments tabled in the PBC, the Solicitor-General indicated that this could generate difficulties for employers when it comes to obtaining information on the need for reasonable accommodation and might also generate new complexities. However, the Government has undertaken to re-consider the matter and table amendments at Report stage in the House of Commons.[188]

138. Serious consideration needs to be given to limiting the use of pre-employment questionnaires to circumstances which relate to the ability of the applicant to perform job-related functions, as is the position in the USA as a result of the Americans with Disabilities Act.[189] We welcome the Government's commitment to reconsidering the matter and look forward to scrutinising its amendments.

55 Clause 145(6). Back

56 European law limits the scope for exceptions to be made in the sphere of employment and occupation. Back

57 Government Equalities Office, Equality Bill: Making it Work: Ending Age Discrimination in Services and Public Functions, June 2009, available at http://www.equalities.gov.uk/pdf/13511%20GEO%20Consultation%206th.pdf. Back

58 Ev 67 at Q 24 Back

59 Ev 67 at Q 24 Back

60 Twenty-fifth Report from the Committee, Session 2008-09, Children's Rights, HL Paper 157/HC 318. Report to be published 20 November 2009. Back

61 Ev 124 Back

62 Ev 178 Back

63 Ev 112 Back

64 Ev 132 Back

65 Ev 119 Back

66 Ev 176 Back