Memorandum submitted by National Aids
Trust (NAT)
SUMMARY OF
RECOMMENDATIONS
Recommendation: The Government should
ratify the UN Convention on the Rights of Persons with Disabilities,
and ensure the Equality Bill reflects the commitments set out
in the Convention.
Recommendation: The Equality Bill should
prohibit the use of pre employment health questionnaires before
the offer of a job has been made to protect disabled people from
discrimination and make discrimination easier to prove.
Recommendation: The Equality Bill should
introduce a clear prohibition of indirect discrimination into
disability law.
Recommendation: The Equality Bill should
provide explicit statutory protection against harassment on the
grounds of disability in the provision of goods, facilities and
services.
Recommendation: The Equality Bill must
provide protection on the grounds of association and perception
in respect of disability. This protection should extend to goods,
facilities and services.
Recommendation: The Government should
work with the EHRC to ensure the needs of disabled people, particularly
those living with HIV, are not overlooked in the single Duty.
Recommendation: Clear and effective privacy
measures should be introduced into the tribunal process to encourage
people living with stigmatised conditions, such as HIV, to take
discrimination cases to tribunal.
Recommendation: Representative actions
in discrimination cases should be introduced to remove the burden
of bringing a claim from the individual.
Recommendation: The Equality Bill should
amend the law so that people can bring a claim that someone has
treated them unfairly on more then one characteristic (eg race
and disability).
INTRODUCTION
1. NAT (National AIDS Trust) is the UK's
leading independent policy and campaigning charity on HIV. NAT
develops policies and campaigns to halt the spread of HIV and
improve the quality of life of people affected by HIV, both in
the UK and internationally.
2. NAT welcomes the chance to submit evidence
to the Joint Committee on Human Right's scrutiny of the Equality
Bill.
3. NAT's submission focuses on human rights
issues raised by the Equality Bill for people living with HIV,
as well as the opportunity the Bill presents to improve the human
rights of disabled people, particularly those living with HIV.
4. Throughout this submission NAT refers
to the UN Convention on the Rights of Persons with Disabilities.
Article 1 sets out the Purpose of the Convention:
Article 1
Purpose
The purpose of the present Convention is to
promote, protect and ensure the full and equal enjoyment of all
human rights and fundamental freedoms by all persons with disabilities,
and to promote respect for their inherent dignity.
NAT believes the Equality Bill presents an opportunity
to ensure that UK equality legislation reflects these commitments.
5. NAT commends the Government for signing
the UN Convention on the Rights of Persons with Disabilities but
now urges the Government to ratify the Convention.
Recommendation: The Government should
ratify the UN Convention on the Rights of Persons with Disabilities,
and ensure the Equality Bill reflects the commitments set out
in the Convention.
DISABILITY, HUMAN
RIGHTS AND
EMPLOYMENT
6. NAT welcome the steps taken by the Government
to prohibit discrimination in employment for disabled people.
Sadly, however, people living with HIV still face discrimination;
employers often do not understand that today someone living with
HIV can live a long and active life and have a fulfilling and
busy career. This lack of understanding about the advancement
of treatment means that many employers will discriminate against
an HIV-positive person, even if they are the best candidate for
the job. In addition to health-related discrimination, people
living with HIV often faces discrimination in relation to other
prejudices such as homophobia and racism.
7. NAT believes the Equality Bill presents
an opportunity for the Government to take further steps to bring
an end to this discrimination, and thereby meet its obligations
under Article 27 of the UN Convention on the Rights of Persons
with Disabilities, and Article 6 of the International Covenant
on Economic, Social and Cultural Rights (ratified by the UK, but
not incorporated into UK law) (ICESCR).
Article 27 of the UN Convention on the Rights
of Persons with Disabilities
States Parties shall safeguard and promote the
realization of the right to work, including for those who acquire
a disability during the course of employment, by taking appropriate
steps, including through legislation, to, inter alia:
(a) Prohibit discrimination on the basis of disability
with regard to all matters concerning all forms of employment,
including conditions of recruitment, hiring and employment, continuance
of employment, career advancement and safe and healthy working
conditions;
Article 6 of the ICESCR
States recognise the right to work, which includes
the right of everyone to the opportunity to gain his living by
which he freely chooses or accepts, and will take appropriate
steps to safeguard this right.
8. NAT proposes that the Government should
use the opportunity the Equality Bill presents to enhance the
protection of disabled people's rights, by prohibiting the use
of pre employment health questionnaires before the offer of a
job has been made. People living with HIV have significant concerns
about discrimination during the recruitment process, and the Government's
planned reforms of Incapacity Benefit may result in more people
living with HIV going through recruitment processes. If employers
were only permitted to ask people to fill out a health questionnaire
after the offer of a job had been made, this would guard against
discrimination and make discrimination easier to prove.
Recommendation: The Equality Bill should
prohibit the use of pre employment health questionnaires before
the offer of a job has been made to protect disabled people from
discrimination and make discrimination easier to prove.
9. The Government are considering how they
can use the Equality Bill to respond to the implications of the
Malcolm case. NAT is very concerned about the impact of this judgment,
which has effectively narrowed the scope of Disability Related
Discrimination. NAT welcomes the Government's intention to use
the Equality Bill to address the consequences of the Malcolm judgement.
Recommendation: The Equality Bill should
introduce a clear prohibition of indirect discrimination into
disability law.
EQUALITY IN
GOODS, FACILITIES
AND SERVICES
10. The Equality Bill presents an opportunity
to provide explicit statutory protection against harassment on
the grounds of disability in the provision of goods, facilities
and services, education in schools, disposal or management of
premises or exercise of public functions.
11. The Government notes in The Equality
Bill—Government response to the Consultation that it
is considering the implications of the Coleman judgment for the
definition of disability harassment before considering whether
to extend protection against harassment outside work in respect
of disability.
12. NAT believes that harassment on the
grounds of disability represents inhuman or degrading treatment
as set out in Article 3 of the ECHR and the Government should
use the opportunity the Equality Bill presents to provide explicit
protection against harassment in the provision of goods, facilities
and services.
13. Providing this protection would also
ensure the UK Government can meet its obligations under Article
16 of the UN Convention on the Rights of Persons with Disabilities:
Article 16
Freedom from exploitation, violence and abuse
1. States Parties shall take all appropriate
legislative, administrative, social, educational and other measures
to protect persons with disabilities, both within and outside
the home, from all forms of exploitation, violence and abuse….
14. NAT believes that harassment in the
provision of goods, facilities and services represents "abuse"
in this context and that the Government should ensure the Equality
Bill provides explicit protection from this.
Recommendation: The Equality Bill should
provide explicit statutory protection against harassment on the
grounds of disability in the provision of goods, facilities and
services.
DISCRIMINATION BY
ASSOCIATION AND
PERCEPTION
15. NAT strongly advocates that the Equality
Bill should prohibit discrimination by association and perception.
16. NAT is particularly concerned about
discrimination by perception as HIV positive status cannot be
"seen" and this profoundly affects how stigma and discrimination
are experienced.
17. Discrimination by association can also
take place in the context of HIV; one case of discrimination by
"association" that came to our attention was a nurse
who was asked to change responsibilities at work and no longer
engage in invasive procedures because her spouse was living with
HIV.
18. NAT is waiting to see how the Government
responds to the Coleman judgment. In the case, the ECJ decided
that in order to comply with the EC Employment Framework Directive,
such discrimination should be prohibited. We hope this will ensure
that prohibition of discrimination by association and perception
is included in the Equality Bill. If not, NAT will be lobbying
to ensure that the Equality Bill ensures that UK's disability
discrimination law provides protection on the grounds of association
with and perception of disability. We would like to see this protection
extend to goods, facilities and services.
Recommendation: The Equality Bill must
provide protection on the grounds of association and perception
in respect of disability. This protection should extend to goods,
facilities and services.
THE PUBLIC
SECTOR EQUALITY
DUTY
19. NAT supports the establishment of a
single Equality Duty. It seems more appropriate to a single Equality
Act and a single Equality and Human Rights Commission. In addition
it can more readily and flexibly address the fact of multiple
discrimination faced by so many in our society, in particular
people living with HIV (many of whom are also gay and/or black
African).
20. NAT also supports the extension of the
single Equality Duty to other grounds. In particular, the discrimination
and inequality faced by gay men in education and health systems
has a direct impact on the ability of gay men to avoid HIV infection
and, for those who are HIV positive, to enjoy and access services
in a supportive environment.
21. NAT's main concerns are that the broadening
out of the Duty may mean that the needs of people living with
HIV are overlooked. NAT's research reveals that even with the
current Disability Equality Duty, these needs are not always considered.
Some recent research carried out by NAT revealed that:
— Of 26 Schemes considered where NAT
believed it reasonable to expect that the relevant public bodies
would have included HIV in their Scheme, only 15 did so;
— In single Equality Schemes reviewed during
this research, there were even fewer references to HIV than in
Disability Equality Schemes;
— Government Department Schemes that were
commended by the Disability Rights Commission have not substantively
addressed the needs and concerns of people living with HIV.
22. This is a particular concern because
many people living with HIV in the UK are already from disadvantaged
groups and HIV, as a stigmatised condition, leads to discrimination
of a distinct and complex nature making it even more important
that their needs are not overlooked.[228]
23. These findings show that steps must
be taken to ensure that public authorities consider the different
needs of individuals covered by a Scheme, including people living
with HIV.
Recommendation: The Government should
work with the EHRC to ensure the needs of disabled people, particularly
those living with HIV, are not overlooked in the single Duty.
EMPLOYMENT TRIBUNALS
24. Article 4 of the UN Convention
states:
1. States Parties undertake to ensure
and promote the full realization of all human rights and fundamental
freedoms for all persons with disabilities without discrimination
of any kind on the basis of disability. To this end, States Parties
undertake: …
(e) To take all appropriate measures to eliminate
discrimination on the basis of disability by any person, organization
or private enterprise;
25. NAT believes that the measures in the
Equality Bill related to employment tribunals, provide an opportunity
to help eliminate discrimination against disabled people in employment.
Currently employment tribunals can only make recommendations that
directly benefit the person who has been discriminated against.
As around 70 per cent of employees involved in discrimination
cases leave the organisation, this ties the hands of tribunals.
The Equality Bill will allow employment tribunals to make wider
recommendations in discrimination cases.
26. NAT welcomes this measure which should
encourage better employment practices. However, NAT would like
to highlight the importance of considering tribunal complainant's
privacy and confidentiality in any proceedings.
27. The publicity surrounding employment
tribunals is a significant disincentive to people living with
HIV in seeking redress. Introducing appropriate measures to protect
the privacy of claimants living with HIV and other stigmatised
conditions during the tribunal process will encourage people to
take discrimination cases to tribunal, helping to eliminate this
type of discrimination.
Recommendation: Clear and effective privacy
measures should be introduced into the tribunal process to encourage
people living with stigmatised conditions, such as HIV, to take
discrimination cases to tribunal.
28. The Government is considering introducing
representative actions in discrimination cases. Currently individuals
who have been discriminated against have to shoulder the burden
of bringing a claim. Representative actions would enable bodies
such as trade unions or the EHRC to take cases to court on behalf
of a group of individuals. However, although the Government is
exploring this further, it has recently announced this will not
be included in the Equality Bill.
Recommendation: Representative actions
in discrimination cases should be introduced to remove the burden
of bringing a claim from the individual.
MULTIPLE DISCRIMINATION
29. NAT welcomes the new single Equality
Bill. HIV in the UK disproportionately affects two groups which
experience inequality and discrimination—gay and bisexual
men, and black Africans—and amongst black Africans, women
are disproportionately affected. It is often hard to disentangle
HIV discrimination from the homophobia, racism, anti-immigration
prejudice and sexism which so many people living with HIV also
experience. The single Equality Act presents an opportunity to
recognise this and see disability in a broader discrimination
context.
30. As the law stands people can only bring
a claim against someone that has treated them unfairly because
of one particular characteristic, but as set out above, there
are examples where people are discriminated against for a number
of reasons.
31. The Preamble to the UN Convention highlights
the importance of considering the issue of multiple discrimination:
The States Parties to the present Convention…
(p) Concerned about the difficult conditions
faced by persons with disabilities who are subject to multiple
or aggravated forms of discrimination on the basis of race, colour,
sex, language, religion, political or other opinion, national,
ethnic, indigenous or social origin, property, birth, age or other
status.
32. NAT therefore welcomes the Government's
commitment to look at the question of bringing claims involving
multiple discrimination. However, we note that it discusses the
need to explore "what the costs and benefits would be."
NAT is concerned that the Government may step back from these
measures due to concerns about cost. We will encourage the Government
to use the opportunity that the Equality Bill presents to take
this area of work forward, as many people living with HIV are
subject to multiple discrimination.
Recommendation: The Equality Bill should
amend the law so that people can bring a claim that someone has
treated them unfairly on more then one characteristic (eg race
and disability).
NAT
December 2008
228 Figures released from the Health Protection Agency
reveal that HIV is disproportionately affecting men who have sex
with men and black Africans, groups that already face discrimination.
3,160 gay and bisexual men were newly diagnosed with HIV
in 2007, the highest number ever. Across the UK one in 20 gay
and bisexual men are now living with HIV. Black Africans accounted
for an estimated two thirds of the 4,260 heterosexually acquired
new diagnoses of HIV in 2007. Source: Health Protection Agency
(2008) HIV in the United Kingdom: 2008 Report, http://www.hpa.org.uk/web/HPAwebFile/HPAweb_C/1227515298354 Back
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