House of Commons - The Equality Bill: how disability equality fits within a single Equality Act

The Equality Bill: how disability equality fits within a single Equality Act - Work and Pensions Committee Contents

2 The single Equality Bill

Merging disability equality legislation into a single Equality Act

10. Discrimination law has developed over a number of years and is set out in nine major pieces of legislation, including the Disability Discrimination Act 1995 (DDA), and various ancillary pieces of legislation. The single Equality Bill will consolidate the law into a single Act. The Department for Work and Pensions (DWP) notes that:

"In the process of harmonising and simplifying the law the Government will make a number of improvements to discrimination law for disabled people in the Equality Bill. The Equality Bill will:

make it more straightforward for disabled people to show that they are disabled;

simplify the definitions of discrimination in accessing goods, facilities and services etc.;

introduce [the concept of] direct discrimination to the supply of goods, facilities and services etc.;

introduce a common threshold for the duty to make reasonable adjustments;

introduce a new duty on landlords to make disability-related alterations to the common parts of let residential premises; and

remove the possibility of justifying a failure to make a reasonable adjustment outside of employment."[5]

11. DWP states that there is widespread agreement that those who need to understand this body of law would benefit from having it in a single Equality Act.[6] The Confederation of British Industry (CBI) reports that its members are sympathetic to the Government's intentions to simplify and streamline legislation across the different equality strands. It argues that "the technical knowledge required of HR managers and SMEs to understand and comply with the multitude of regulations related to different equality strands is vast and costly."[7]

12. However, most submissions expressed concerns that, where appropriate, distinctive disability equality provisions should be retained. Mr Crowther of the Equality and Human Rights Commission (EHRC) stressed that "The challenge really is to bring it [disability discrimination law] within that broad family of equality law whilst recognising those key differences. I think the most fundamental difference between our current approach to disability discrimination and other equality law is that rather than being based on the idea of treating people in the same way - equal treatment - it is really predicated on the idea that we need to treat people differently to accord people equal opportunities."[8]

13. The Employers' Forum on Disability, amongst others, echoes this view: "Treating everyone the same does not mean that everyone is treated fairly. Disability needs different wording to the other strands. […] Harmonisation and simplification should be about the spirit of the law not the letter."[9]

14. The DDA's provisions differ radically in many respects from equivalent legislation relating to the other 'strands' of discrimination such as age, gender, race etc. Most fundamentally, disability discrimination is the only strand which is asymmetric i.e. only disabled people have protection under it. This is unlike the other strands where people of all races, all religions or none, every age, sexuality and gender are protected. It means that it is possible for employers to positively discriminate in favour of disabled people if they wish.

15. Furthermore, the definition of disability discrimination explicitly requires different treatment for disabled people, both through the prohibition on disability-related discrimination (discussed in paras 22 - 34 below) and through the duty to make reasonable adjustments. Reasonable adjustments could be viewed as more favourable treatment but in fact level the playing field for disabled people and remove obstacles to their economic and social inclusion in society. In addition, the Disability Equality Duty requires public authorities to provide more favourable treatment for disabled people.[10]

16. The Minister for Women and Equality in the Government Equalities Office, Maria Eagle, states that the Government has no intention of reducing existing protection for disabled people in the new legislation. She stressed that "In respect of disability, we will not resile from current protection and I can give an absolute assurance about that."[11]

17. Two specific issues for in-depth consideration were identified: the nature of discrimination and the scope of the protected class.

18. We welcome the Government's intentions to simplify and streamline legislation across the different equality strands into one single Equality Bill. This will make discrimination law easier to understand and comply with. We also welcome the Minister's assurance that the new Bill will not resile from current protection for disabled people. We recommend that, where appropriate, distinctive disability equality provisions, namely the requirement to make reasonable adjustments, disability-related discrimination, and the public sector duty to consider more favourable treatment, should be retained.

Nature of Discrimination

19. The DDA 1995 is divided into areas of activities, including employment; goods, facilities and services; premises (sale and letting); and education. The definitions of discrimination are broadly, but not precisely, the same across these activities. There are three principal forms of discrimination defined: direct discrimination (paragraphs 20 - 21); disability-related discrimination (paragraphs 22 - 34); and a failure to make reasonable adjustments (paragraphs 41 - 44). Each form has a corresponding level of permitted justification for discriminatory behaviour. These are illustrated in the table below.

Discrimination and justification:

Form of Discrimination Example Permitted Justification

Direct discrimination A job advertisement that specifies that disabled candidates will not be considered. None

Disability-related discrimination A blind man with his guide dog who is refused entry to a restaurant with a no dog policy. Broad justification permitted in employment and education (material and substantial). Narrow and specific grounds in the provision of goods, facilities and services (eg health and safety)

Failure to make reasonable adjustments Any disadvantage caused by a provision, criterion or practice or any physical feature of premises. Not justified in relation to employment or education. Justified in relation to goods, facilities and services on specific grounds such as excessive costs

Discrimination by association and perception Harassment of a worker for associating with a friend with AIDS, or dismissal of an employee in the mistaken belief that they are HIV positive. Currently not prohibited by Disability Discrimination Act 2005

Multiple discrimination (intersectional discrimination) Older women in the media who are singled out for less favourable treatment because of their sex as well as their age in the way that older male broadcasters or younger female broadcasters are not singled out. Currently not prohibited in equality legislation

DIRECT DISCRIMINATION

20. Direct discrimination is prima facie discriminatory treatment, such as a job advertisement that specifies that disabled candidates will not be considered. In the context of disability, care must be taken not to confuse a person's disability and the consequences of that disability. For instance, an employer may refuse to hire a woman with epilepsy because he has reliable information that she cannot drive safely. The refusal to hire was on the ground of her driving capability, and not on the ground of her disability, and so would not amount to direct discrimination. By contrast, an example of direct discrimination would be a refusal of access by the employer's sports and social club simply on the basis that the club does not allow disabled members, and without any consideration of whether the employee might benefit from membership, and even though they could access the club with a reasonable adjustment.[12]

21. Direct discrimination carries no general defence of 'objective justification' or 'excuse' for the treatment. At present, direct discrimination is outlawed only in the Employment Part of the Disability Discrimination Act 1995, although DWP states that the Government will introduce the concept of direct discrimination to the supply of goods, facilities and services in the Equality Bill.[13]

DISABILITY-RELATED DISCRIMINATION

22. Disability-related discrimination is the functional equivalent of indirect discrimination used for other grounds (such as race or sex), but the legal concept is unique to disability discrimination. It carries a justification defence (paras 35 - 40), which varies according to the locus of alleged discrimination (education, employment housing etc). It is defined as follows:

"[A] person discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and (b) he cannot show that the treatment in question is justified."[14]

23. However, the House of Lords decision in Malcolm v Lewisham in 2008 overturned the previously accepted meaning of disability-related discrimination. Mr Malcolm was a tenant of Lewisham council and diagnosed with schizophrenia. He exercised his right to buy his flat, but just before completion, he sub-let the flat and moved out. Consequently, the council gave him notice to quit in accordance with the Housing Act 1985. Malcolm claimed the eviction amounted to disability-related discrimination. The House of Lords affirmed the county court decision for the council and held that the eviction was not related to Malcolm's schizophrenia and in any case, he was not treated less favourably than any other person who sub-let his flat.[15]

24. Until the Lord's ruling in Malcolm, the established meaning of disability-related discrimination was set out in the Court of Appeal ruling in Clark v Novacold. Under the Clark v Novacold rulings, the reason for the less favourable treatment needed only to be related to the disability. Thus if a cafe has a 'no dogs' rule, the reason for refusing entry to a blind man with his guide dog relates to his disability. Similarly, a customer who is told to leave a restaurant because she has difficulty eating as a result of her disability is so treated for a reason related to her disability. And a worker dismissed for long-term absence caused by a back-injury is dismissed for a reason related to his disability. In these examples the comparator for assessing less favourable treatment is a person without the disability and without the 'reason', ie without a dog, or without an eating difficulty, or without the long-term absence.[16]

25. In the Malcolm judgment, the House of Lords disapproved of Novacold and held that the correct comparator in determining whether a disabled person was subject to less favourable treatment was a person in the same circumstances as the claimant save for the disability. Hence, the treatment of Malcolm should be compared to how the council would have treated a tenant without a disability who had sub-let. Accordingly, in the examples cited in the paragraph above the blind customer with a guide dog should be compared with a sighted customer with a dog; a customer with eating difficulties should be compared with a person without a disability but with eating difficulties; and a worker long-term absent should be compared to a worker without a disability who was long-term absent.[17]

26. DWP concedes that "the House of Lords' judgment in the Lewisham v Malcolm case has disturbed the balance between the rights of the disabled person and the interests of those with duties under the legislation by making it harder for a disabled person to be able to demonstrate a prima facie case of disability-related discrimination."[18] The Office of Disability Issues (ODI) has consulted on how to address the problem that the Malcolm judgment created and has proposed replacing disability related discrimination with the model of indirect discrimination. In its consultation paper, the ODI defines indirect discrimination as follows:

"The concept of indirect discrimination takes the approach set out in Article 2(2)(b)(i) of the [European] Framework Employment Directive.[…] Indirect discrimination occurs where someone applies to both people in the protected group and to others an apparently neutral provision, criterion or practice

which puts, or would put, persons sharing the protected characteristic at a particular disadvantage compared with other persons; and
which puts, or would put, an individual with the protected characteristic at that disadvantage,
unless that provision, criterion or practice can be objectively justified as being a proportionate means of achieving a legitimate aim.

When the comparison is made between the individual and the comparator group, there must be no material difference between the circumstances relating to each, apart from the protected characteristic e.g. race, sex, etc."[19]

27. DWP states that "adopting the concept of indirect discrimination in the Equality Bill will achieve an appropriate level of protection for disabled people. In addition it will improve consistency, within the Equality Bill, between the provisions for disability and those related to the other protected characteristics, such as age, race and sex."[20]

28. The evidence received broadly supported some form of action to address the impact of the Malcolm case. However, the majority was against using indirect discrimination and in favour of re-instating a modified form of disability-related discrimination. The CBI expressed concern that the consultation:

"has left many questions unanswered about how indirect discrimination would operate in practice. Our members have highlighted concerns and raised questions about group comparators, objective justification and reasonable adjustment by anticipation - all areas that will require understanding and compliance from employers in order to operate effectively. In this sense, the move to indirect discrimination might result in a more complicated and technical set of regulations for employers to unravel and comprehend."[21]

29. The Housing Law Practitioners Association echoed concerns that the new concept of indirect discrimination in disability discrimination law would:

"create further uncertainty [and] would put an undue burden on a disabled person to identify a neutral provision, criterion or practice. S/he would then need to show that that provision, criterion or practice had a disparate impact upon people who share that individual's characteristics. These technical requirements would not be required were the Novacold formulation of disability related discrimination to be reinstated together with an objective defence of justification."[22]

30. Cloisters, a barristers' chambers specialising in discrimination and equality law, sums up that, whilst an option, indirect discrimination will cause the following difficulties in the context of disability:

"its possible inability to address individual, one off acts;
the potential for confusion, particularly in relation to the pool for comparison which must be identified for a claim of indirect discrimination to succeed. […] a requirement to show a disparate impact, […] may cause difficulties for disabled people who experience the effects of an impairment in different ways. Indirect discrimination is also a very complicated, time consuming and expensive basis on which to bring a claim."[23]

31. CBI members argue that "the pre-Malcolm interpretation of the DDA was widely understood and familiar to employers and employees alike, not to mention more effective in its protection of disabled people: in this light, the reversal of the Malcolm judgment might be the preferred option."[24] Employers' Forum on Disability members conclude that "the Equality Bill should re-introduce less favourable treatment for a reason related to disability but without the need for a comparator as well as introducing indirect discrimination into disability legislation."[25] A number of submissions agree with this position.[26]

32. This would in effect be close to the position before the Malcolm decision, and would resemble the provisions introduced in relation to pregnancy, where the issue of identifying appropriate comparators was recognised as being inappropriate. Thus the Sex Discrimination Act 1975 was recently amended to remove the requirement for a comparator in cases of pregnancy discrimination. It now simply provides that a woman has been discriminated against if she is treated less favourably on grounds of her pregnancy. Establishing the specific concept of pregnancy discrimination in law and removing the comparator requirement follows a convoluted history of tribunals and courts trying to identify appropriate male comparators for pregnant women in order to establish sex discrimination, rather than simply focusing on what the reasons for the less favourable treatment of the pregnant woman were.[27]

33. However, when we asked the Minister, Maria Eagle, how the Government would resolve the problems left by the Lord's decision in Malcolm, she stated that the Government was still considering all its options:

"We are considering it in detail at present but you have basically got a range of possible ways forward. […] I cannot tell you today precisely how we are going to do this but this is what is in our mind: do we stick with disability-related reasons, do we get rid of disability-related reasons and introduce a concept more known in European law of indirect discrimination which applies slightly oddly, I think, in the disability field, or do we try and cover all the bases and do both?"[28]

34. We received evidence that the Government's response to the Malcolm judgment of introducing indirect discrimination in disability legislation will not provide the same level of protection as was previously provided pre-Malcolm. The pre-Malcolm interpretation of the disability legislation was widely understood and familiar to employers and employees alike. The Government should use the opportunity the Equality Bill presents to reform provisions for disability-related discrimination to re-establish the situation that existed before the Malcolm judgment. This could be achieved by removing the requirement for a comparator, in line with current sex discrimination law regarding pregnant women.

35. The ability of employers, service providers and landlords to justify disability-related discrimination in appropriate circumstances is clearly essential in terms of providing an outcome which would be fair to all parties. Indeed it has been argued that the underlying problem which led to the Malcolm judgment was that in the field of premises, disability-related discrimination objective justification (the permitted 'excuse' for discriminatory behaviour) is limited to an exhaustive list of specific conditions, such as avoiding endangering health or safety.[29] None of these conditions covers sub-letting or the non-payment of rent. Thus, if for a reason related to his disability, a tenant permanently sub-lets, or fails to pay any rent, he could never be evicted.

36. This contrasts with the employment and education parts of the DDA, where the grounds of objective justification are unrestricted.[30] As Baroness Hale explained, in the Malcolm judgment: "It may well be that Parliament had not understood that the narrow scope for justification in relation to services and premises would give rise to the problems we face in this case" and which may interfere with a landlord's property rights under the European Convention on Human Rights.[31] Michael Connolly, lecturer in law and author of equality law textbooks, therefore argues that "the real problem in the Malcolm case is an adequate defence for landlords."[32]

37. DWP states that, in the Equality Bill, the Government intends to harmonise the different provisions that currently allow employers, service providers, landlords and others to justify disability discrimination: "Once the Equality Bill is enacted, they will be able to justify discrimination where the discriminatory treatment is a proportionate means of achieving a legitimate aim."[33]

38. The EHRC, Cloisters and the Discrimination Law Association agree with the Government that there should be a single test of objective justification for disability discrimination in employment and vocational training, goods, facilities and services, housing, education, private clubs, public functions and transport.[34] The EHRC and Michael Connolly propose that rather than the wording proposed by DWP, the Bill itself should state that justification would only be possible where the treatment in question is 'objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary'.[35]

39. We believe that preserving strong disability rights by re-instating a modified version disability-related discrimination needs to go hand in hand with an adequate defence for those with duties under the legislation. Harmonising the different provisions that currently permit employers, service providers, landlords and others to justify disability discrimination in certain circumstances will ensure a balance between their responsibilities and the rights of the disabled person.

40. We welcome the Government's intention to harmonise the different provisions that currently permit employers, service providers, landlords and others to justify disability discrimination in certain circumstances. We recommend that the objective justification permitted for disability-related discrimination should be, as proposed by the Equality and Human Rights Commission, where the treatment in question is 'objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary'.

FAILURE TO MAKE REASONABLE ADJUSTMENTS

41. The duty to make reasonable adjustments is a legal responsibility under the DDA. It applies to people such as employers, service providers and education providers and is intended to make sure that disabled people do not face substantial difficulties in employment, education or when using services. Failure to make reasonable adjustments can be a form of discrimination and is unlawful.

42. The DDA defines a reasonable adjustment as a reasonable step taken to prevent a disabled person suffering a substantial disadvantage compared with people who are not disabled. In the case of employers, for example, the duty applies to any disadvantage caused by a provision, criterion or practice applied by, or on behalf of, the employer, or any physical feature of premises occupied by the employer. A 'substantial disadvantage' is one that is not 'minor' or 'trivial'. The term 'provision, criterion and practice' covers an employer's policies on offering work, terms and conditions, managing and dismissing staff, and the way in which these are carried out.

43. The DDA does not define 'reasonable', or give a complete list of what reasonable adjustments may be. Ultimately it is up to the courts to decide. This is because an adjustment is related to a particular individual, their experience of their impairment and the situation they are in. However, it does set out four tests of reasonableness.

The effectiveness in preventing disadvantage. How much will a reasonable adjustment reduce the disadvantage? The more effective an adjustment is in reducing disadvantage, the more reasonable it is likely to be.

The practicality of the step. It is more likely that an employer will be expected to take a step that is easy than to take a step that is hard. If disadvantage can easily be removed by changing the way things are done, or the equipment that is used, then the adjustment is likely to be considered reasonable.

The financial and other costs and the extent of any disruption caused. When trying to decide whether an adjustment would be reasonable, the cost of the adjustment and any disruption it might cause should also be considered.

The extent of an organisation's financial and other resources. An organisation with big financial resources would be more likely to have to make a reasonable adjustment than one with fewer resources.

44. Financial help from government schemes, such as Access to Work, is available to help in providing reasonable adjustments for employees. We discuss the Access to Work scheme in greater detail in chapter 4. These funds must be taken into account when deciding how 'financially reasonable' an adjustment is.

Scope of protected class

DISCRIMINATION BY ASSOCIATION AND PERCEPTION

45. The DDA 1995 outlaws discrimination 'on the ground of the disabled person's disability' or for 'a reason that relates to the disabled person's disability'. This is in contrast to the wider drafting of most other discrimination legislation. For instance, the Race Relations Act 1976 outlaws discrimination 'on racial grounds'. This broader definition catches two further types of discrimination: third-party discrimination (including discrimination by association) and perceived discrimination. It is also unlawful, for example, on grounds of religious discrimination, for a line manager to harass a worker for associating with a Muslim or a Christian. But under the narrow drafting of the DDA 1995 neither discrimination by association nor perceived discrimination is prohibited. Thus it is not unlawful disability discrimination to harass a worker for associating with a friend with AIDS, nor to dismiss an employee in the mistaken belief that they are HIV positive.[36]

46. In the Coleman case, the European Court of Justice (ECJ) considered whether the European Framework Directive protects only disabled people and, if not, whether it provides protection from direct discrimination and harassment, in employment and occupation, on the basis of an association with a disabled person. Since she was not the one suffering from a disability, Ms Coleman, a carer for her disabled son, was unable to claim her employer's actions in dismissing her were discriminatory under the DDA 1995. Ms Coleman argued that the failure of the DDA to similarly recognise discrimination or harassment of a non-disabled person on the grounds of their association with someone with a disability did not accord with the much wider wording and interpretation of the European Framework Directive.[37]

47. The ECJ held that the wider phrase in the Employment Equality Directive to prohibit discrimination "on the grounds of religion or belief, disability, age or sexual orientation" prevails over UK law and includes discrimination by association. As the Advocate General said in his opinion in Coleman:

"directly targeting a person who has a particular characteristic is not the only way of discriminating against him or her; there are other, more subtle and less obvious ways of doing so. One way of undermining the dignity and autonomy of people who belong to a certain group is to target not them but third persons who are closely associated with them and do not themselves belong to the group. A robust conception of equality entails that these subtler forms of discrimination should also be caught by anti-discrimination legislation."[38]

48. A number of submissions argue that as the current definition of disability discrimination is inconsistent with other UK discrimination statutes and EU law, it must be amended to include third party disability discrimination and harassment.[39] A number of submissions also mention discrimination on the grounds of perceived disability.[40] The Joint Committee on the draft Disability Discrimination Bill recommended in May 2004 that the law should prohibit direct discrimination and harassment against people who are associated with a disabled person or are perceived to be disabled.[41]

49. 'Perceived discrimination' arises where a person treats another less favourably because he wrongly believes the worker has a disability. In Attridge Law v Coleman, the ECJ stated:

"it does not follow from those provisions of [the Employment Equality Directive] that the principle of equal treatment which it is designed to safeguard is limited to people who themselves have a disability within the meaning of the Directive. On the contrary, the purpose of the Directive, as regards employment and occupation, is to combat all forms of discrimination on grounds of disability."

50. The judgment added that the Employment Equality Directive should not be interpreted as "prohibiting only direct discrimination on grounds of disability and relating exclusively to disabled people."[42] These statements suggest that the European legislation requires legal protection not only for those with a disability but also against all forms of disability discrimination. The definition in the parent Directives and the ECJ judgment in Coleman combine to suggest that perceived disability discrimination is covered by EU law.[43] The same logic applies to age discrimination, as it is one of the grounds in both the Employment Equality Directive and the proposed Directive on goods, facilities and services.[44]

51. The Minister, Maria Eagle, told us "One of the things we would certainly be looking at in bringing in association and perception on the basis of Coleman would be to do it across the strands. In putting all the strands together, we are not seeking to have any unnecessary distinctions between them. One of the things the Bill is seeking to do is to simplify and make it easier for those upon whom these obligations are going to be placed to understand what they are."[45]

52. We welcome the Government's intention to simplify discrimination legislation by extending the concept of discrimination to association and perception across all strands. We recommend that this form of discrimination should be prohibited under employment and the goods, facilities and premises provisions.

53. The CBI states that its members are concerned with the risk of 'scope creep' in harmonising the other equality strands to include discrimination by association and perception, and how employers would cope with the implications:

"The reality is that the Coleman judgment, in extending the realm of associative discrimination, creates questions about how close the association has to be with the disabled party in order to gain discrimination rights under this legislation. Presumably, greater specification would be necessary, particularly in the areas of:

the level of care given;
the relationship with the disabled person being cared for;
who determines the status of the relationship."[46]

54. However, the Coleman case is one of direct discrimination and harassment based on association with a disabled child. At no point in this particular case was it argued on behalf of Coleman that discrimination by association should extend to reasonable adjustment provisions. In these circumstances, employers would have to, for instance, give thought to how apparently neutral provisions, criteria or practices impact on carers of disabled people of all ages. Even after Coleman, there will not necessarily be an obligation on employers under the DDA to treat employees who, for example, care for a disabled relative, more favourably (by making adjustments). Employees who wish to work part-time to care for a disabled relative have to pursue such a request through the statutory right to request flexible working, rather than the DDA. Cloisters and the Discrimination Law Association point out that "the decision in Coleman means only that direct discrimination and harassment based on association with a disabled person must be prohibited under domestic legislation. It does not address the matter of flexible working - and in particular, it does not provide carers with a right to reasonable [adjustment], which may be necessary in order to ensure their effective participation in the workplace."[47]

55. Carers UK also disagree with the suggestion that carers are likely to be covered through indirect discrimination, particularly on the grounds of gender or age. It argues that it is a difficult vehicle to use as it involves complex stages for proving the definition, is untested in law and does not provide clarity for employers or employees. Relying on this would also lead to further inequalities as, for example, indirect sex discrimination would not protect men who are carers and indirect age discrimination would not protect younger carers who are often most at risk of social exclusion.[48]

56. Carers UK believe there is a very strong case for extending legal protection to carers against discrimination in the three key areas of:

a single public sector equality duty;
discrimination in employment; and
discrimination in the provision of goods, facilities and services.[49]

Carers UK argued for "a new prohibited ground of discrimination against carers following the format of the Disability Discrimination Act as this is the most appropriate to the position of carers."[50]

57. The Citizens Advice Bureau (CAB) agree that "instead of having a patchwork of rights under disability and age discrimination statutes, it would be preferable if a proper system of anti-discrimination protection for carers was put in place."[51] In our report Valuing and Supporting Carers, we recommended that the Government should include carers in the forthcoming single Equality Bill, which would give carers the protection they currently lack in employment, the provision of goods, facilities and services and through public sector equality duties.[52]

58. The Government has made clear that it does not intend to extend protection against discrimination for carers, or for parents, as such. DWP states: "we […] are taking specific measures that support people in this position, particularly to help them balance work/life responsibilities."[53] On 6 April 2009 the Government extended the right to request flexible working to about 4.5 million parents of children aged up to 16. Under the previous rules the opportunity was limited to parents whose children are under six or disabled.[54]

59. The Minister, Maria Eagle, stressed: "We are certainly not committed to extending the strands. Part of what we are trying to do with the Equality Bill is bring all the strands together, rather than creating lots of new ones. […] If we can deal with the issue by dealing with association and perception, then I think that is a perfectly pragmatic way of doing it."[55]

60. However, she could not deny that some carers would still lose out:

"Mr Heald: It would not help all carers though, would it? It would just help those who are caring for a person who can claim the protection of disability or age or one of the strands.

Maria Eagle: I would be quite interested to hear examples of who would be left out in such a circumstance.[56]

Mr Heald: A mother at work whose child was ill.

Maria Eagle: It would depend on the circumstances that she was facing. I think it would cover an awful lot."[57]

61. We welcome the Government's announcement to include carers in the forthcoming single Equality Bill, which will give carers the protection they currently lack in employment, the provision of goods, facilities and services and through public sector equality duties. However, the decision in Coleman means that only direct discrimination and harassment based on association with a disabled person must be prohibited under domestic legislation. Coleman does not address the matter of flexible working - and in particular, it does not provide carers with a right to request reasonable adjustment, which may be necessary in order to ensure their effective participation in the workplace. We believe that the Bill should make this provision.

MULTIPLE DISCRIMINATION

62. Some submissions also highlighted that the single Equality Act presents an opportunity to see discrimination in a broader context.[58] As the law stands people can only bring a claim against someone who has treated them unfairly because of one particular characteristic. This is because of the particular approach to comparisons under UK discrimination law. UK law allows the courts to consider whether an hypothetical comparator would have been treated less favourably. However, it is only possible to compare one characteristic at a time. The Minister, Maria Eagle, acknowledged that:

"At present, […], if you are taking an individual case, you have to pick one. Pick your best one, whatever it is, and the one you think you have most evidence for. We are looking at ways in which we can deal with that by enabling claims for multiple discrimination. […] However, it is a very difficult, thorny issue in policy terms."[59]

63. Cloisters and the Discrimination Law Association explain that multiple discrimination may be additive (a disabled woman whose employer discriminates on the grounds of sex and disability will be doubly disadvantaged by her combined disability and sex), or it may be intersectional (a disabled woman whose employer discriminates only against disabled women, but not against non-disabled women or disabled men will be uniquely disadvantaged by her combined disability and sex).[60] Mr Harrop of Age Concern and Help the Aged gave a similar example of intersectional discrimination on the basis of age and gender:

"If you think in an employment context of the spate of stories over the last year of older women in the media who have, I think most people would agree, been singled out because of their sex as well as their age in the way that male broadcasters have not been singled out. […] I think there are advantages in not just seeing discrimination as a series of parallel potential claims; at the moment it is really a case of 'pick your best one and see how you get on'. With modest tweaks to the law around how comparator tests work you could enable people, as has been said, to represent themselves as their whole person and make the most appropriate comparator."[61]

64. While additive discrimination is open to challenge under current domestic law as long as those subject to it can fulfil the normal standards of proof in relation to each of the grounds of discrimination which they allege, domestic law fails to address multiple discrimination when it takes the intersectional form described by the examples above. The problem in these cases is finding a comparator; ie a black woman can only compare herself (in terms of assessing whether she has been unfavourably treated) with a black man or a white woman, and not with a white man.[62]

Graphic 1[63]

65. The Equality and Diversity Forum argues that intersectional discrimination is widespread because people are treated less favourably on more than one ground simultaneously, yet there have been few cases where it has been raised directly. While in the past a few cases were successful in arguing intersectional discrimination and having two grounds recognised as operating together, the case law has now ruled out this possibility.[64]

66. In 2004, the Court of Appeal in Bahl v the Law Society ruled on the correct way to deal with intersectional discrimination. In this case an Asian woman claimed that she had been subjected to discriminatory treatment both on the grounds that she was Asian and that she was a woman.[65] This judgment made it clear that each ground had to be separately considered and a ruling made in each, even if the claimant experiences them as inextricably linked. This led to Ms Bahl failing to prove that discrimination had occurred, as she could not identify which aspect of her claim related to only one characteristic. Other cases since then have been lost for the same reason.[66]

67. The National AIDS Trust welcomes the Government's commitment to look at the question of bringing claims involving multiple discrimination. It calls for 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.[67] Cloisters and the Discrimination Law Association argue that the single Equality Bill should ensure that action can be taken on the basis of a combination of prohibited grounds, such as on intersectional discrimination.[68]

68. The current legal framework is totally inadequate to address cases of multiple discrimination where people are treated less favourably on more than one ground simultaneously. The single Equality Bill is the first opportunity to address this omission and should clarify that a discriminatory practice includes a practice based on one or more prohibited grounds of discrimination or on the effect of a combination of prohibited grounds. However, the Bill should also make clear that there should be no lowering of the standard of proof required.

THE SOCIAL MODEL VS MEDICAL MODEL APPROACH

69. At present, unless the definition of disability is met there can be no discrimination claim under the DDA. The current definition is extremely complex, save in certain narrowly defined circumstances; it requires proof that an individual has an impairment which has a substantial and long-term adverse impact on their ability to carry out day to day activities.[69] Ever since the DDA was passed there has been a strong body of criticism about its definition of disability on the basis that it derives from the 'medical model', focusing as it does on the functional limitations of an individual. Most submissions to this inquiry argue that the 'medical model' should be replaced by a 'social model' approach.[70]

70. The social model of disability identifies 'disabling barriers' rather than 'impairment' as the problem to be tackled. Disabling barriers are the attitudinal, economic, and/or environmental factors preventing certain people from experiencing equality of opportunity because of an impairment or perceived impairment. A disabled person might say, therefore, "My impairment is the fact that I can't walk; I am disabled by the fact that the local authority building is accessed only via a flight of stairs."[71]

71. In June 2006 the Disability Rights Commission (DRC) recommended to the Government that the DDA's definition of disability should be changed to one which gives protection from discrimination to everyone who has (or has had) an impairment without requiring the effects of that impairment to be substantial or long-term. The DRC's recommendation for change followed a request from the Joint Committee on the Draft Disability Discrimination Bill for the DRC to review the definition. The Committee argued that: "if the Government are to achieve their aim of comprehensive, enforceable civil rights for disabled people against discrimination in society or at work then the current inadequacies in the DDA definition must be addressed. Many of the deficiencies would, we believe, be overcome by focusing disability anti-discrimination legislation on the act of discrimination, and not the extent of the impairment."[72]The DRC's public consultation revealed strong support for such a shift in approach.[73]

72. However, DWP states that: "For the purposes of anti-discrimination legislation, the Government considers that it is appropriate to maintain the current approach to models of disability, which draws on different models for different purposes. The basic principle of the legislation is that it is asymmetrical, in that generally it protects only disabled people. Consequently, it is necessary to define who is a disabled person for the purposes of the Act and the Government considers that an essentially 'medical' model provides the most appropriate means of doing so."[74]

73. The Minister, Maria Eagle, told us: "We are not planning on changing to a total social model. We are going to make some changes. For example, we are going to remove the capacities bit from the current DDA definition which should make it easier for people to show that they meet the definition, although we are not changing the definition in the DDA completely."[75] She added that disabled people "will have to show that they fit within the definition if it is disputed by their opponent whether or not they fit within the definition, yes. It will be slightly easier for them to do it, but yes, that will still be there."[76]

74. The EHRC believes that the Government failed to address the current inadequacies in the DDA definition of disability, proposing only minimal change relating to removing the current list of 'capacities'. The EHRC, amongst other submissions, proposes that the definition of disability should be changed completely, according to the social model. The Local Government Employers state "This model does not deny the existence of impairment but […] changes the focus on to what aspects of the working world can be proactively adapted and changed."[77] The Employers' Forum on Disability states that "using the social model of disability, employers are better able to make reasonable adjustments."[78] It adds that "DWP may find the business rationale for becoming disability confident, which presents the benefits to the business of taking a social model approach, a useful communications tool when setting out to engage employers on this agenda."[79]

75. The Minister argued that "the DDA definition is relatively well known in our law and understood by those who have to deal with it in the courts, and there is some merit in not changing it unless there is a really good reason to change it."[80] However, the EHRC argues that the social model approach would make it much easier for everyone to understand when someone is entitled to protection from discrimination.[81] Mr Azad of the National AIDS Trust argued that :

"The social versus medical model debate can seem very academic or philosophical I think, but for people living with HIV it is an extremely practical issue. […] Is hepatitis C a disability? I would argue that that may be a matter of debate in a court and could significantly disadvantage people who are infected in that way if they do not have any current functional problem as a result of their infection, even though discrimination can certainly apply in their case. I think that gives you one example from our perspective of a social model which may cover more people but that is because they need to be covered."[82]

76. CBI members agree that "the current definition of disability creates uncertainty and in some cases the only way to determine whether a person is disabled is to go to tribunal."[83] Cloisters and the Discrimination Law Association state that where it is unclear whether or not an individual meets the definition - and this is relatively common - they will be "put to proof", which will usually mean an extensive witness statement explaining what they can and cannot do; an expert medical report; and a hearing at which the claimant will be cross examined.[84]

77. In addition, Cloisters argue, it can also cause difficulties for employers. Both sides incur medical expert expenses which establish the nature of the impairment and the employer is then left with a decision as to cross examining on whether the impairment has more than minor or trivial adverse effects on the claimant's ability to carry out normal day to day activities. However that evidence very often relates to matters that take place in the home, to which the employer has no access. Thus the net effect is to draw out proceedings and to increase the stress they create.[85] Citizens Advice adds that it has "long been concerned about the flaws in the process and the quality of medical assessments and the decisions based upon them."[86]

78. Currently there is no protection for people with short-term but severe conditions, or those with long-term conditions which do not have a substantial adverse impact on day to day activities. Cloisters and the Discrimination Law Association stress that the definition is particularly problematic for people with mental health issues, given the requirement that the effects of an impairment must be 'long-term' (ie likely to last or have lasted for more than 12 months). "If, for example, an individual has depression which has lasted for only two months but an employer refuses to employ/promote them because of this, there is nothing that they can do under the current Act."[87]

79. Cloisters also state that there is the difficulty of predicting the likelihood of duration. This must be judged at the time of the act of discrimination. "In many mental health cases it is simply not possible to say at that time what the duration is likely to be. However the current law (and its interpretation) suggests that these predictive factors are relevant."[88] Unison argues that "To protect some disabled people from discrimination but not others because their impairment is less significant only serves to create a hierarchy that perpetuates discrimination of a vulnerable section of our society."[89]

80. Most submissions argue that the focus of attention should shift from the medical condition of an individual to a consideration of whether or not discrimination is occurring and the need or otherwise for a reasonable adjustment and whether treatment is fair. For example, Mr Crowther of the EHRC explained:

"we were referred a situation by an MP of a constituent who had one eye and wanted to join the fire service in his local area. He was aware that there were serving firemen and women with such impairments but he failed the fitness test and he wanted to bring a claim of discrimination. The paradox in the Act was that they would have had to have proved that having one eye meant that he had a substantial and adverse effect on his ability to perform a normal, day to day activity and would undermine the whole basis of the claim that he was making."[90]

81. The EHRC also argues that the social model approach would bring the law into alignment with best practice. For employees who develop impairments or health conditions, good practice is to respond to any problems as soon as they become apparent, not, for example, to allow lengthy periods of sick leave to elapse before enquiring whether or not steps can be taken to enable an employee to return to work. In such cases, waiting until it is clear that an employee meets the DDA definition (by having an impairment which has a substantial adverse impact for 12 months or more) before putting in place reasonable adjustments undermines the chances of a successful outcome.[91]

82. The CBI argues that the proposal to extend the definition of disability to protection against discrimination on the grounds of any 'impairment', regardless of level or type of impairment, would mean that anyone, with potentially any level or type of impairment (lower back pain, sore foot, stress etc), could make a discrimination claim. "Our members are concerned that this approach would trivialise disability rights and discredit the legislation by opening it to abuse. […] While there would be no need to determine whether someone was disabled, far more people would be able to ask for reasonable adjustments and there would be less clarity about the extent to which these would have to be accommodated. […] In reality, not all requests for reasonable adjustments can be met. Resources will always be finite and people who are in need of more or expensive adjustments may not receive them if employers receive an increased number of requests for adjustments from employees with minor or even severe but short-term ailments."[92]

83. Mr Crowther acknowledges that the social model approach "potentially […] broadens the reach of the Act but what it does really is focus the attention onto the barrier or the discrimination of somebody's experience rather than interrogation of the impairment they have. Clearly it still provides safeguards against unrealistic claims or the legislation being abused. Similarly with the reasonable adjustments duty and where, in order to bring a claim, somebody would have to prove that they experience substantial disadvantage."[93] Ms Casserley of the Discrimination Law Association added that "if you have a definition that is based on impairment what you do is get to the heart of the matter which is the treatment and whether or not the treatment was justified if it is disability related, for example, or whether it was on the grounds of someone's disability. That should be the focus of anti-discrimination legislation."[94]

84. We believe that for the purpose of direct and disability-related discrimination the social model - protection from discrimination to everyone who has (or has had) an impairment without requiring the effects of that impairment to be substantial or long-term - should apply. The focus should be on whether or not the treatment of an individual was justified, or whether it was on the grounds of their impairment. It is inequitable to protect some disabled people from discrimination but not others because their impairment is less significant.

85. However, for the third discrimination ground - the failure to make reasonable adjustments - a medical model approach must be retained. This will ensure clarity for business about the extent to which they have to make adjustments and ensures that the most vulnerable receive the support they need.

The role of the Equality and Human Rights Commission, the Government Equalities Office and the Office for Disability Issues

86. The role of the EHRC is set out in Part 1 and relevant Schedules of the Equality Act 2006. DWP states that the Government will look to the EHRC to issue appropriate codes of practice and guidance on the new Act and to carry out its various enforcement, supportive and promotional activities. The EHRC is planning to launch a series of inquiries into inequality in a number of sectors.[95]

87. The TUC states that the former Disability Rights Commission took some important early steps to promote enforcement and compliance with the Disability Equality Duty in the first year, providing helpful advice and guidance on the duty, checking whether public bodies had produced equality schemes, and carrying out more in-depth checks of the schemes produced by central government departments, strategic health authorities and regional development agencies. It argues that:

"This kind of activity must be continued by the EHRC and it must be provided with the resources to enable it to carry out this work. There are concerns, however, that the EHRC has not properly followed up on some of the earlier work done by the previous Commissions. The Single Duty will make even more demands on the EHRC and so it must be provided with sufficient resources to lead on this work and to form effective partnerships with other bodies to promote compliance and enforcement."[96]

88. The Disability Charities Consortium agrees that the Monitoring the Disability Discrimination Act research by the former DRC provided a strong evidence base to help identify barriers around the implementation of the DDA, and to inform action to make it easier for disabled people to challenge discrimination.[97] The Disability Charities Consortium would like the ODI and the EHRC to continue this type of research. It also urges the EHRC to engage more with the disability community, noting that the numbers of calls to their Helpline compared to the Disability Rights Commission's helpline have dropped significantly.[98]

89. The Employers' Forum on Disability states that EHRC has a unique role as the only public organisation that has responsibility for all equality and diversity strands.[99] Mr Harrop of Age Concern and Help the Aged stressed that "we should think about […] the opportunity that having the new Act brings. Events do create awareness so it is very important that the Government and EHRC use this as an opportunity to shake up public debate and raise awareness of both existing legislation and the new rights that are coming."[100]

90. It is paramount that the Government and the Equality and Human Rights Commission (EHRC) monitor the implementation and progress of the single Equality Act effectively. The EHRC has a unique role as the only public organisation that has responsibility for all equality and diversity strands. It needs to ensure that none of the rights under the current strands are diminished under a single Equality Act.

91. The ODI has been set up to help the Government to deliver on the commitment made in the report, Improving the Life Chances of Disabled People. The report says that by 2025, disabled people should have the same opportunities and choices as non-disabled people and be respected and included as equal members of society. The ODI acts as a champion for disabled people within government. It works with all Departments to help them better understand and meet the needs of disabled people.[101]

92. DWP states that the ODI is working to ensure that disability is properly reflected in the new Act, and that opportunities are taken to harmonise approaches where possible whilst also ensuring that there are distinct provisions for disability within the Equality Bill where appropriate. It is also working to ensure that the commitment that there should generally be no erosion of existing levels of protection for disabled people is delivered. The Department states that the ODI's role regarding the Equality Bill after it has received Royal Assent will be decided in due course.[102]

93. Employers' Forum on Disability understands the role of the ODI to be to monitor government policy as it affects disability across all government departments. This makes it in some sense an internal disability audit office. However, in practice it seems that other government departments regard ODI as having exclusive responsibility for disability. This leaves ODI, a relatively small department, taking the lead on disability across all policy areas including employment, education and housing.[103] The Employers' Forum on Disability is also concerned that the separation between the Government Equalities Office (GEO) and the ODI will mean that disability issues will not be adequately understood or dealt with within equality legislation:

"A good example of this is the ODI consultation on the Malcolm case. This consultation was led by ODI. However, in discussion with ODI it was apparent that the consultation responses were simply informing ODI's work with Government Equalities Office on the Equality Bill. This division makes it difficult for employers to represent their views to relevant officials and Ministers. It also means that there are conflicting messages going to employers. There appear to be mixed messages emerging from DWP, Government Equalities Office and BERR about the equality agenda. Disability is variously positioned as an issue about equality, talent and business performance, welfare reform or a source of additional regulatory or financial burdens on business. This is unhelpful when trying to promote change within employers."[104]

94. Although the GEO leads on the Government's overall policy and legislation on equality issues, other Departments still lead on various aspects of equality legislation. The Department of Communities and Local Government continue to lead on race and faith policy (other than in respect of certain equality matters) including PSA 10 on race equality and community cohesion. DWP lead on disability policy and legislation (ODI) and on age policy (older people) including PSA17. The Department for Business, Enterprise and Regulatory Reform, which leads on employment rights, has responsibility for some specific aspects of discrimination law in the workplace - age, religion or belief and sexual orientation - but not policy more generally. The Department for Children, Schools and Families (Department for Innovation, Universities and Skills for further and higher education) and the Scottish and Welsh Governments are responsible for equality law and policy in the field of education, and for children and youth policy. The Ministry of Justice leads on human rights law and policy and on the Gender Recognition Act. The Office of the First Minister and Deputy First Minister leads on equalities legislation and policy within Northern Ireland, as a devolved matter.[105]

95. The Employers' Forum on Disability states that the division of responsibility within government departments is confusing and undermines the effectiveness of any single equality legislation. To address this, it calls for a Minister for Equality and Human Rights: "It would send a powerful message to the nation were the government to appoint a Minister for Equality and Human Rights with a seat at the cabinet table."[106]

96. Citizens Advice agrees that there needs to be better policy co-ordination on equality and disability issues across Whitehall. It recognises "the benefit of retaining the Office for Disability Issues as part of the Department for Work and Pensions as a focal point within Government for co-ordinating disability policy and ensuring that the recommendations from the strategy report Improving Life Chances of Disabled People are implemented."[107] It adds that "The Government Equality Office should be allowed, and encouraged, to engage on all of the PSAs that relate to socio-economic inequality as well as those dealing directly with the six discrimination grounds, ensuring the interaction between the two is recognised in the steps taken to achieve targets and measure progress."[108]

97. The division of responsibility for equality issues within government departments is confusing and risks undermining the effectiveness of any single Equality Act. The Government Equality Office (GEO) should lead on equality matters after the single Equality Act comes into force. To co-ordinate disability policy across Whitehall effectively, the GEO needs specialist expertise on disability, as currently provided by the Office for Disability Issues (ODI). The GEO should also lead on all of the PSAs that relate to inequalities and discrimination.

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10 45,000 public bodies across Great Britain are covered by the Disability Equality Duty (DED), which came into force in December 2006. The DED is meant to ensure that all public bodies - such as central or local government, schools, health trusts or emergency services - pay 'due regard' to the promotion of equality for disabled people in every area of their work. Back

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12 Ev 64 [Michael Connolly] Back

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16 Ev 64 [Michael Connolly] Back