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I am all in favour of very strong disability discrimination protection, but if there is absolutely no knowledge that a person is disabled, and if someone could not reasonably be expected to know, I cannot understand how on earth there could be liability. Although I am grateful for the introduction, the Malcolm case has been effectively reversed by these amendments, and I would be very interested to know whether other noble Lords who specialise in this area-for example, the noble Lord, Lord Low, or the noble Baroness, Lady Campbell-would think it unreasonable to keep Clause 15(2) in the Bill.
Baroness Deech: This clause is not confined to employment. I have some experience of this in handling student complaints. In my time, discrimination against students who had dyslexia was a major issue. Dyslexia is not visible, and universities, quite reasonably, could not be expected to make allowances in relation to time and marks if they did not know that a student had dyslexia. In the written decisions that the Office of the Independent Adjudicator for Higher Education gave, and based on counsel's opinion, we would say that the university had not acted unreasonably if it could not have known that the student had the disability of dyslexia. That seems to be a perfectly reasonable outcome. I therefore support the noble Lord, Lord Lester, in not wishing to place too heavy a burden on employers and others, such as universities, who cannot be expected to know every detail about employees and students. Indeed I believe that we should encourage employees and students not to be ashamed of having a disability and to come forward so that the organisation can cater for it, rather than waiting until something has gone wrong and then saying that they have been discriminated against. I think that this is a good subsection.
Lord Low of Dalston: My Lords, in response to the noble Lord, Lord Lester, perhaps I may say that I was not pressing for the knowledge requirement to be removed from Clause 15.
Baroness Meacher: My Lords, people with mental health disorders are often very concerned that others do not know of their disorder. It would be unfair to allege discrimination in such cases. Therefore, I, too, support the subsection as it stands.
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Baroness Royall of Blaisdon: My Lords, Clause 15 provides that an employer or service provider, such as the universities cited by the noble Baroness, Lady Deech, cannot be liable for discrimination arising from disability if he or she does not know, and could not reasonably be expected to know, that the person is disabled. This is sometimes referred to as the "knowledge requirement". This amendment seeks to remove it from the Bill.
The judgment in the House of Lords in the Malcolm case was unanimous that actual or imputed knowledge of the disability must be a factor in determining whether there has been disability-related discrimination. It is right to reflect this in the legislation, rather than rely on case law.
An example is a pub landlady who refuses to serve a man who has had a stroke as she thinks that the man is drunk because of the way that he speaks. He is not refused service because he has had a stroke but because he has slurred speech, which is something that is connected with the disability. If any of the facts of the case, such as the other symptoms connected with a stroke or information given to the landlady by the customer himself, or by someone else, should have led the landlady to believe that the slurred speech was the result of the stroke rather than the drunkenness, the knowledge provision will be satisfied. This is the case even if the landlady herself did not believe that this was the case.
The legislation, therefore, achieves a balance between the rights of disabled people and the interests of those with duties. The Bill sets out that a person is still under a duty not to discriminate where they could reasonably be expected to know that the person was disabled; and that, once a prima facie case has been established, the burden of proof falls on the duty-holder to show that they have not discriminated.
The noble Baroness, Lady Warsi, asked how businesses or service providers would know what to do. There will be codes of practice that will be used alongside the legislation. These codes of practice will set out examples to show, where the treatment is unfavourable, how it should be determined. I am not sure when these codes of practice will be forthcoming but I will certainly let the noble Baroness and other noble Lords know. I would therefore respectfully request that the noble Baroness withdraw the amendment.
Baroness Warsi: My Lords, I thank the Minister for her response, specifically in relation to the assurances that more-detailed codes of practice will be published to provide further clarification. I thank the noble Lord, Lord Low of Dalston, and the noble Baronesses, Lady Meacher and Lady Deech, for bringing forward their experience and direct contact with individuals and organisations that may be affected by this. I am grateful for this experience. I beg leave to withdraw the amendment.
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Clause 17 : Pregnancy and maternity discrimination: non-work cases
Baroness Thornton: My Lords, I speak to the amendment in the name of my noble friend Lady Royall. For brevity's sake, I refer to that of the noble Lord, Lord Lester, and thank him for tabling his amendment, which mirrors the Government's thinking on this sensitive issue.
Nobody is happy to see someone who is barely more than a child becoming pregnant while still at school. We want to reduce the incidence of this happening; the Government's Teenage Pregnancy Strategy is focused on this. However, once a pupil has become pregnant, and if she decides to go ahead and have the baby, the important thing for both her and her baby's prospects is that we try to ensure that she is able to complete her education. This is the best possible outcome for all concerned.
Initially, our view was that other measures already in place were sufficient to tackle this without extending discrimination law into this area. However, we have considered this issue very carefully and listened to the concerns raised during the passage of the Bill. We now accept that the best interests of pregnant schoolgirls will be served by their being protected from discrimination in schools. I am therefore happy to table this amendment, which will remove the exemption in schools from Clause 17 of the Bill. I am also at this point happy to accept the amendment of the noble Lord, Lord Lester, which will do the same in Clause 84.
Through their Teenage Pregnancy Strategy, the Government will continue to try to ensure that school-age mothers receive the support and tuition they need to complete their education. This new protection in law should help to clarify the position for very young mothers and ease their way back into an educational setting. I beg to move.
Lord Lester of Herne Hill: My Lords, I am very grateful to the Minister. I strongly support Amendment 37. I am grateful to the Government for indicating that they will support my Amendment 105. If we do not bring our domestic law into line in this way, there will be a very strong argument for saying that not ensuring teenage pupils who become pregnant in schools are not discriminated against violates the European Convention on Human Rights; that is to say, not only the right to education but the right to private life without discrimination. It is one of the reasons why this is beneficial.
Of course, no one is saying that they regard teenage pregnancy in schools as a desirable matter. That is a different matter altogether from whether the fact that a girl becomes pregnant in school should mean that she will be subjected to less favourable treatment. I am extremely grateful and support this amendment.
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Baroness Gould of Potternewton: My Lords, I, too, thank the Government for tabling this amendment after the concerns that were raised at Second Reading by the noble Lord, Lord Lester, and myself about pregnant girls facing discrimination in schools. The Government amendment and the amendment put down by the noble Lord, Lord Lester, are important. I give you three incidents.
It will benefit, for instance, a young woman who was asked by her school to leave when she got pregnant; a young woman who was 25-weeks pregnant and was told that she was not allowed to sit an examination because she could not wear her school uniform; and the girl who was told by her teacher that there was no need to carry on her education because she had ruined her life by becoming pregnant. Those are just three very quick examples that I put on record to show the importance of the amendment that we have before us.
Not to have this amendment would completely contradict the policy of the Government in respect of teenage pregnancy and the work that is being done to encourage girls to continue with their education and their future development. Therefore, I fully support this amendment.
Baroness Warsi: My Lords, these two amendments will effectively extend the protection against pregnancy and maternity discrimination to schools. The Explanatory Notes, as they stand, state that this chapter will not apply to people in schools with regard to their protected characteristics of age, marriage, civil partnership or pregnancy and maternity. In light of the Minister's assurance at Committee in another place that she did,
- "is plenty of law that covers this matter, as well as policies and guidance",-[Official Report, Commons, Equality Bill Committee, 24/06/09; cols. 466-67.]
can the Minister set out what research has been undertaken and what results have been shown that prove that, since this matter has been in the other place, there is now an issue?
I listened to the examples laid out by the noble Baroness, Lady Gould. It is important that we extend legislation and protection to those who need it. However, it is also important that we ensure that this will work in practice. Therefore, can the Minister set out a couple of examples to inform the Committee of a situation where this new protection would come into place and how the school would ensure that that protection was in place? Have the Government, for example, done any research on the scope of this amendment? How many people does she envisage it will protect?
Furthermore, what analysis has been done of the impact of this provision on schools? Will guidance be provided to schools to demonstrate how these provisions will work and how they would be expected to operate within the bounds of the change of law? Will the Minister set out the changes she imagines will take place within schools in light of this change? In another place, this amendment was dismissed as unnecessary. We now see that the Government are putting it forward as necessary. Are they considering similar changes in other areas throughout the Bill?
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Baroness Thornton: My Lords, the noble Baroness has raised a variety of questions which I hope that I will be able to cover. Yes, guidance will be issued to schools. Yes, that was done on the basis of discussion with the DCSF. I do not have in front of me the figure for the number of schoolgirls who have become pregnant. I have dealt with this question wearing my hat as a health Minister, so I should be able to remember, but I am afraid that I cannot. However, we are happy that the number is falling, which is how we like it.
We have listened to a number of organisations about this issue. They have made representations to us and have given examples very like those given by my noble friend Lady Gould, plus others. We hope that this will not be a much-used addition to the protection that this Bill offers. We certainly do not envisage lawyers and legislation being used except in extreme cases. However, it is very important that schools treat these cases with sensitivity, on a case-by-case basis and look at the best interests of the child who is in their care. This addition to this part of the Bill will help us to do that. We have listened to the representations that have been made. We are a listening Government, which is why we wish to make this change.
Lord Lester of Herne Hill: Perhaps I may ask a question, which will save me having to speak on Amendment 105. Is it not the case that at the moment sex discrimination against a pupil in a school is covered by the law? Therefore, in the old days one would have regarded pregnancy discrimination as part of sex discrimination. All that is now happening in order to make sure that it is covered is that there will be a separate provision to protect pregnant teenage girls and women.
Baroness Thornton: As ever, the noble Lord is correct.
Baroness O'Cathain: Perhaps the noble Baroness could give me some clarification. I am wondering how this measure will be implemented, although I probably have some comfort from the noble Lord, Lord Lester, who has said that already there is a list. Will it be part of the order on schools that they include this measure? If so, when will it happen?
Baroness Thornton: The DCSF already produces guidelines to schools which give specific responsibilities that they have for pupils in their care who fall pregnant. This guidance will make it clear that a school cannot exclude a pupil simply on the grounds of becoming pregnant, or refuse to educate young mothers. This is being revised and will reflect this amendment if it is accepted and becomes law. The DCSF and the Department of Health issue joint guidance to local authorities and PCTs on what works with regard to the care of these children. We would expect this amendment, if it is accepted and becomes law, to become part of that system, which is already in existence.
Baroness O'Cathain: I accept the Minister's point, but I should like one further clarification. I listened intently to the examples given by the noble Baroness, Lady Gould, one of which was a complete disruption
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Baroness Thornton: I assume that legal action was not taken in that case. We are putting this beyond doubt.
Clause 17, as amended, agreed.
Clause 19 : Indirect discrimination
Amendments 38 to 41 not moved.
Clause 20 : Duty to make adjustments
Lord Low of Dalston: The substantive amendment in this group is Amendment 45A and the other 29 consequential-except Amendments 43 to 45, to which the noble Baroness, Lady Warsi, will speak. I am aware that further amendments may still need to be made which are consequential on Amendment 45A, but I hope that they can be taken care of on Report. Clause 20 imposes a duty on a wide range of persons to make "reasonable adjustments" for disabled people by complying with one or other of three requirements to take reasonable steps to avoid a "substantial disadvantage" at which a disabled person may be placed as a result of a "provision, criterion or practice", or a "physical feature", or the absence of an "auxiliary aid" or service. Amendment 45A adds a fourth requirement-to avoid a "substantial disadvantage" caused by the provision of information in an inaccessible form.
I once had a colleague who always began by saying, "I feel very strongly about this". One got the impression that he was starting at about 7 or 8 on the Richter scale. Although I feel very strongly about this matter, I hope I will be able to make my presentation slightly lower down the Richter scale. It will immediately be clear that I have a direct personal interest in this amendment. Perhaps that is why I feel so strongly about it. I should also declare my interest as a vice-president of RNIB, the leading charity representing the interests of blind and partially sighted people for whom improving access to information is a major objective of policy and campaigning.
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No one can be in any doubt that we live today in the information society-if by that is meant an age in which we are bombarded by information from all sides as never before. The ability to handle that information effectively is critical to being able to participate effectively in society, avail oneself of its opportunities, fulfil one's aspirations and responsibilities, and negotiate one's way around the various institutions of society and the services that it offers. Yet, for blind and partially sighted people, or those who are print-disabled in any way, the ability to do that is largely denied by the fact that the great bulk of that information is completely inaccessible to them. That is why we need provision for the removal of barriers created by the provision of information in an inaccessible form. This is as important to the inclusion of those with print disabilities as the removal of the barriers created by physical features is to those with physical disabilities.
There are a number of points I would like to make about the amendment. First and foremost, without it the Bill will represent a regression from what we have at the moment and that, as we know, is something that the Government have pledged to avoid. At the moment, Section 21(4) of the DDA provides:
"Where an auxiliary aid or service (for example, the provision of information on audio tape or of a sign language interpreter) would-
(a) enable disabled persons to make use of a service which a provider of services provides, or is prepared to provide, to members of the public, or
(b) facilitate the use by disabled persons of such a service,
it is the duty of the provider of that service to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to provide that auxiliary aid or service".
That is a plain duty in the Act with the provision of information clearly instanced as an example of the kind of services the duty refers to. There is nothing of that in the Equality Bill.
Secondly, it does not impose an undue burden on those providing services. Since it is an example of the duty to make reasonable adjustments, it requires providers to do only what is reasonable and is not mandatory. It is relatively cheap and easy to produce large print on a computer these days and not much harder to produce other formats. It might be thought-and I am sure the Government will say-this is not necessary because avoidance of the disadvantage caused by the provision of information in an inaccessible form is already covered by the first requirement to avoid the disadvantage created by a provision, criterion or practice, or the third requirement to provide an auxiliary aid or service. But these requirements effectively reproduce the current DDA duty to make a reasonable adjustment where a practice, policy or procedure, or the absence of an auxiliary aid or service, makes it impossible or unreasonably difficult to use a service. This has patently not worked. So we already have the obligation, in so far as it is comprehended by the equivalent of the first or third requirement, but it has not served our purpose.
Article 21 of the recently adopted UN Convention on the Rights of Persons with Disabilities on freedom of expression and opinion and access to information, which the UK has ratified, says that states parties should provide information intended for the general public to persons with disabilities in accessible formats
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RNIB has also provided a snapshot of the situation in local authorities based on a range of 22 local authorities from all round the country. The survey asked whether the authorities could provide information such as council tax bills in accessible formats for blind and partially sighted people. It showed that just two of the 22 authorities surveyed-just 9 per cent-had front-line staff who could answer the query. In most cases the caller was directed to a variety of departments before they even reached someone who knew what the policy on accessible formats was. Over a third said they could not offer Braille or audio for people who could not read print. How are people expected to fulfil their responsibilities as citizens in those circumstances?
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The Benefits Agency sends out benefit letters to blind people in standard print. A DWP survey of public bodies, including government, education, health and emergency services, found that only a quarter of organisations offered information in large print, only 8 per cent offered it on disk or CD, and as few as 4 per cent advertised the availability of Braille. Although some of these materials were available on request, the survey found that approximately 40 per cent did not provide information in an accessible format at all.
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