Discrimination Law Review: A Framework for Fairness: Proposals for a Single Equality Bill
Response of the Group for Solicitors with Disabilities
The Group for Solicitors with Disabilities (GSD) is an organisation controlled and run by disabled people, most of whom are solicitors, and it is recognised by the Law Society of England and Wales.
Our view of the Green Paper
We have had the opportunity of considering the Briefing prepared by the Disability Rights Commission (DRC) and we fully support their issues and concerns. In particular we would also like to see those items the DRC sets out as wishing to see in a Single Equality Act:
• Stronger enforcement mechanisms: equality tribunals, group and representative actions and effective sanctions.
• Extended and strengthened duty to promote equality: which applies to all strands; retains the general duty’s application to all functions and the requirement on most authorities to produce public equality schemes; explicitly applies to public procurement and requires action by inspection bodies.
• A clear statement in the Act of its purpose: not merely eliminating discrimination but enhancing dignity and participation and achieving substantive equality through positive action where required. Such a clause would improve public understanding and guide courts, tribunals, and everyone else dealing with the legislation as to how it should be applied and interpreted.
• Banning all disability discrimination: ships, planes, volunteers and armed services.
• Stronger protection against education discrimination.
• A simpler, better definition of disability.
• Protection for those discriminated against because they are associated with or perceived to be a disabled person (this would benefit carers, people working with HIV positive people and many others) and a fairer approach to disability discrimination per se (protecting anyone discriminated against on grounds of impairment).
• Protection against genetic discrimination.
• Clear protection against multiple-discrimination.
We see little point in reiterating everything but would like to underline some issues of particular concern to us.
Enforcement mechanisms
We have concerns about the complexities of enforcing ones rights as a disabled individual.
We know how access to the courts, in its widest sense, is a problem for those seeking to challenge discrimination on any ground, but disabled people seeking to enforce the DDA duty to make adjustments face particular difficulties because of the complexity and expense of litigation. Specific support for disabled people wishing to take action to enforce their rights, especially in relation to access to services, is virtually non-existent. We are clear that it is completely unrealistic to rely on the CEHR as the sole effective mechanism for tackling non-compliance with the DDA.
Despite some drawbacks, the Employment Tribunal system is more accessible for disabled people as has been proved by the number of cases taken by disabled employees.
We therefore strongly support the DRC’s proposal that all discrimination cases should be commenced in the employment tribunals, and where the matter does not relate to employment, the tribunal should be designated as an “equality tribunal”.
We strongly disagree with the proposal of designating certain courts to hear all non-employment discrimination cases. This is on the basis that it will make access to justice even more difficult than at present – with longer journeys to courts.
We would also like to see a broader range of potential sanctions in access to service cases as suggested by the DRC, such as the loss of a pub’s license.
In employment cases we support the suggestion that Tribunals are able to make policy recommendations to an employer even where there is no direct benefit to the complainant.
We strongly support the arguments for Representative Actions which can provide a useful route for people to bring their cases to court when they are unwilling or unable to bring claims themselves. Disabled people so often find that, in combating discrimination, action taken by a third party to effect change is the only way they feel able to take such a personally upsetting issue forward.
We very strongly support the extending of the time limit for initiating claims in Employment Tribunals from 3 to 6 months. We know how unaware disabled people often are of their rights. We also know how internalised oppression may prevent them from coming swiftly to terms with the fact that they have a right to take action, and should do so. Another consideration is the fact that many of those protected under the DDA do not identify as disabled people and may take time to come to terms with the fact that identifying as such is in their best interests.
We support the removal of the anomaly that reinstatement can be ordered for unfair dismissal but not for disability discrimination by extending the powers of the Employment Tribunals.
Public Sector Duty
Although we are in favour of a single streamlined duty, we believe that it is essential that the present model must be retained and built upon rather than replaced with a fundamentally new approach. We also favour the extension of the equality duty to cover religion and belief, age and sexual orientation.
Having worked with public authorities within the legal sector, we believe it is essential that the clear principle at present underpinning all three equality duties, that equality needs to be considered by public authorities in all their activities, must be retained.
The legal mandating mainstreaming by requiring ‘due regard’ to be given to all public authority decisions and activities, ensures a thorough response to equality. The clear message is sent that equality is ‘core business’ for the public sector.
Simply setting out equality objectives and take proportionate action to achieve these will, in our view, lead to the side-lining of equality, and again making it someone else’s business.
Following on from this the production of equality schemes including monitoring and an Action Plan, is an essential focus for the Duty. The requirement to involve disabled people in these schemes, although challenging to many authorities, is proving very productive when undertaken effectively.
We remember the days of the “Green Card” and the Quota under the Disabled Persons (Employment) Act 1944 with no enforcement available to disabled people. We are therefore strongly opposed to a situation where only the CEHR will be able to take enforcement action in relation to the Duty, on the basis of failing to meet equality objectives.
We support the DRC’s proposals for strengthening the Duty by:
• adding in a requirement for authorities to set objectives for improving delivery on equality, in consultation with affected groups (drawing on the framework of the gender duty);
• making explicit the requirement for inspectorates to take authorities performance on equality into account when measuring their performance;
• making explicit the requirement for authorities to build equality considerations into the procurement processes; and
• strengthening leadership from Government Departments.
We too regard Public Procurement as an important lever for comprehensive good practice.
Private Sector Equality Duties
We support the recommendation that detailed consideration is given to placing at least some elements of the proactive duty approach on the private sector. We accept that small and medium business should not be subject to a duty to promote equality, but would welcome a debate on when and where to draw the line.
Purpose clause
We, like the DRC, believe that the proposed Single Equality Act would benefit greatly from a clause setting out its purpose and principles. The long title of the DDA has been, particularly in the early days, useful in conveying its essence to the uninitiated. We would envisage a purpose clause to be longer and to have a greater role in clarifying.
Banning Disability Discrimination in all areas
It is particularly frustrating for many disabled people to find invisible boundaries between those areas of life covered by the DDA and those which are not. The three exclusions which only operate in relation to disability discrimination need to end so that legal protection is extended to all areas of our lives.
Transport, especially Ships and Planes
The exemption of air and maritime services leaves a major gap in the legislation. The transport exemption generally in the present law is very complex and should be simplified.
Armed Services
We believe that disabled people in the armed forces should not be denied rights against unfair discrimination in employment. We agree that the objection that disabled people cannot be effective in the armed forces appears to be based on an inaccurate and limited appreciation of the definition of disabled people.
Volunteering
Very many disabled people actively engage in volunteering, both for its own sake and as a step towards employment. Discrimination against disabled people needs to be prohibited in this key sector. Extending the protection of the law to volunteers would bring helpful clarification.
Strengthening rights in education
We believe that the rights of disabled children, young people and adults, in relation to access to education, need to be clarified and strengthened.
Definition of Disability
We would support a new definition which moves away from protecting a group of ‘disabled’ people and instead protects anyone who experiences discrimination on the grounds of impairment. We agree that it would remove substantial barriers to individual access to justice and encourage a more systemic approach to change and to the removal of barriers, bringing the law into line with best practice.
We think that it is right that individuals who experience discrimination because they are falsely perceived to be disabled, and friends, family and carers of disabled people, should be protected by the DDA.
We agree that the list of capacities has been the cause of confusion in the past, but we support the DRC view that the following capacities be added to the list:
• Ability to care for oneself.
• Ability to communicate and interact with others.
• Perception of reality.
Genetic Discrimination.
We agree that legislation is now needed and that more needs to be done through legislation than simply extending the DDA protection to those with genetic pre-conditions.
Multiple Discrimination.
People do not fit into neat pigeon-holes, and disabled people are no exception. We therefore support proposals for clear coverage of multiple discrimination.
Definition of Disability Discrimination.
We agree 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.
We welcome the proposal to establish a single threshold for the point at which the duty to make adjustments is triggered. This may be where a disabled person experiences “substantial disadvantage”, as the DRC suggests, but we would wish to see very clear guidance to ensure that the disadvantage related sufficiently to the individual and not simply external comparators.
We support the contention that direct disability discrimination outside the employment area should be a stand-alone unlawful act, with a single definition.
We support the removal of the ability to justify failure to make reasonable adjustments as only "reasonable" adjustments are required.
We certainly do not agree that a purely individualised approach is adequate to open up equal opportunities to disabled people. We support the DRC's concern is that institutional barriers can exclude groups of disabled people and that a legal mechanism which tackles indirect discrimination, by encouraging employers to dismantle institutional barriers, is needed.
September 2007