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Improving Protection from Disability Discrimination
Response from Trade Union Disability Alliance
1.The Trade Union Disability Alliance (TUDA) brings together disabled trade unionists with affiliated branches and trade unions from across the trade union movement to move forward on issues affecting all disabled trade unionists.
2. We call on the Government to introduce a revised version of disability related discrimination in order to correct the gap in protection left by the Malcolm judgement. This must be the priority. Whilst we would like in addition to see indirect discrimination introduced, this will need to be modified to apply to disability.
3. We welcome the opportunity to comment on the Government’s proposals to improve protection from disability discrimination after the House of Lords’ judgment in the Malcolm case. It is imperative that the severe impact that this decision has had on disabled people’s rights is reversed as soon as possible – and as effectively as possible. This decision overturned a long-standing understanding of disabled rights, well accepted by employers and service providers.
The decision removes a useful tool from the armoury of workplace representatives – prior to Malcolm, they could argue that if an employer was going to subject a disabled person to particular treatment, such as dismissal, and this was related to their disability, the onus would be on them to show that it was justified. Now, it is for the disabled person to say that they need adjustments – meaning a completely different emphasis.
4. The case for reversing this impact is also clear: the concept of disability related discrimination was well established and accepted by employers, service providers etc; with the sole exception of the housing arena ,the flexibility of the justification provisions provided a satisfactory tool for bearing the weight of establishing whether treatment had been fair.
Legal commentary
Legal commentators across the spectrum agree that this decision severely restricts legal protection to disabled people.
Personnel Today’s comment on the Malcolm case was headed ‘Disability claims will now be harder to make’. They state: “employers will now have more freedom to dismiss absent disabled employees”, although caution that reasonable adjustment considerations will still need to be considered.
IDS Diversity at Work commented “While the Novacold test was flawed as a comparative exercise, it could at least be said to encourage a climate where employers, landlords, retailers, etc needed to think about how their rules, actions and practices affect people with disabilities. The approach enshrined in
Malcolm does exactly the opposite, requiring simply that disabled people are not the only one subject to such rules.
Solicitors Journal stated that: “Parliament must now be urged to enact legislation to make clear their intentions and bring cases of indirect discrimination back within the scope of the DDA. “
Employment Lawyers Association Briefing “The scope of the DDA has been significantly narrowed and much of the burden on employers has been lifted…The decision may come as a blow to disabled employees and, as was acknowledged by the Lords, they may find they now have fewer rights.”
5. Why disability equality requires distinctive legal concepts?
British discrimination law seeks to provide equality of opportunity by following the Aristolelian principle that likes should be treated alike (prohibition on direct discrimination). It also recognises that inequality can be produced by treating differently situated people in the same way (the prohibition on indirect discrimination).
Whilst direct discrimination against disabled people is not uncommon, on the whole the second aspect of equality is of greater importance in relation to disability compared to other grounds -because differences are more commonly visible and potentially problematic. The disadvantage of a disabled person arises from the interaction of their impairment with the environment. To take a simple example, a wheelchair user’s problem in accessing a service arises because level access is not provided to that service.
Whilst some barriers to equality are experienced in common across a broad cross-section of disabled people (as in the example above all wheelchair users will experience the same problem) many barriers can be highly individualised, because of the wide range of impairments interacting with very specific environments. The extent to which disadvantage arising from a ground is often so individualised also marks disability out from the other grounds.
DRD was designed to address precisely these very specific, individualised barriers to equality of opportunity. Since Malcolm, DRD has in effect been interpreted as equivalent to direct discrimination, asking: has a disabled person been treated differently from a non-disabled person (for a reason related to their disability)? Prior to Malcolm, however, the law asked a different question: has the disabled person received unfavourable treatment for a reason related to their disability?. This was a much more powerful prompt for change because it required employers and service providers to be conscious that decisions might impact differently on disabled individuals and to be prepared to be flexible to avoid unnecessary disadvantage. It required employers etc to act differently where needed in order to deliver fair treatment.
What prevented DRD from being unfair to employers etc, was the proviso that it could be legally ‘justified’. The justifications for DRD differ in the various parts of the Act. DRD asked employers etc to consider treating a disabled person differently, balancing up other considerations against the need to minimise disadvantage to the disabled person. With the sole exception of the housing arena the flexibility of the justification provisions provided a satisfactory tool for bearing this weight.
As an example: a person with a severe stammer applies for a job. The stammer particularly arises in stressful situations and the interviewers agree that the candidate had not performed well and gave the job to another candidate who on paper had less experience and qualifications.
Under direct discrimination (and post-Malcolm DRD) the law asks: would somebody else in a comparable situation have been treated in the same way? Just as with pregnancy discrimination it is difficult to construct an appropriate comparator. The interviewers would have treated any one who stumbled over their words in a similar manner.
Under pre Malcolm DRD, once it is accepted that the reason for denying the job was the stammered performance at interview, the focus of analysis is whether that decision could be justified. Does the job require clear speech in situations of pressure (like a news broadcaster) or not (for example a computer programmer).
Indirect discrimination would formulate the question in an artificially complex manner: it would try to identify a ‘provision criteria or practice’, then there would need to be a comparison between the group to which the disabled applicant belonged (people with a severe stammer) and others, in order to establish whether the condition or practiced placed that group at a particular disadvantage. Only then would the question of whether the interviewers were justified in their decision be reached.
In this case identifying the relevant groups for the purpose of comparison is fairly easy. However, this will often not be so, because of the individualised nature of many impairments. Indeed Lord Brown expresses this Malcolm judgement: “Disabilities are too diverse in their nature for the concept to lend itself easily to the notion of indirect discrimination.”
6. Limited options
Whilst TUDA is pleased that the Government accepts the importance of remedying the impact of the Malcolm decision we regret that the consultation questions are not posed with this aim in mind and particularly that the consultation fails adequately to explore the legal options for remedying the ‘Malcolm gap’.
There are two clear options for passing legislation to amend the DDA reversing the impact of the Malcolm judgement: introducing the concept of indirect discrimination into the DDA or re-introducing the disability related treatment concept in a suitably modified form.
7. Why indirect discrimination will not restore disabled people’s rights
Indirect discrimination cannot be relied on to restore the rights lost. Whilst we believe that the indirect discrimination can be useful in addressing forms of group discrimination, a revised version of disability related discrimination (DRD) is required to restore the rights lost consequent to the Malcolm decision. This is because DRD addresses individual decisions which often affect disabled individuals in very specific ways.
In the abstract introducing the concept of indirect discrimination appears attractive – because it will fit in with the goal of harmonising legislation and because it may in any event be required for the draft goods and services proposed by the European Commission is accepted. However, whilst this is the more convenient option the test must be which option best re-establishes the previously existing protection for disabled people. This will need to be done in a way that will provide the greatest degree of clarity – for those with rights and responsibilities and, not least, to minimize the risk that future court judgements will once again erode protection. On these criteria the introduction of indirect disability discrimination looks by far worst option.
There are clear signs in Malcolm that the Law Lords will struggle to implement an indirect discrimination provision in the disability context. Lord Brown expresses this most explicitly in the judgement:
“Disabilities are too diverse in their nature for the concept to lend itself easily to the notion of indirect discrimination—the imposition of requirements ostensibly neutral but in fact having a disproportionate and unjustifiable impact on those sought to be protected. What indirect discrimination against the disabled would equate to, say, a requirement for employees to be at least six feet tall—presumably indirectly discriminatory against both women (sex) and those of Asian origins (race)? The needs of the disabled are rather different and require sometimes to be met by positive action.”
The consultation document makes much of the ‘new’ version of indirect discrimination. However, this comment was made after the new version had been introduced into UK law.
Thus, whilst it is fair to say that the indirect discrimination concept is evolving, in part in response to EU law, it is highly questionable whether the concept will evolve sufficiently to overcome these barriers which are intrinsic to the way in which indirect discrimination has operated up to the present time in UK courts. The degree to which modifications to the indirect discrimination concept are read across to other equality ‘strands’ is also likely to inhibit judicial development of the concept to address the particular needs of disabled people
The concept of indirect discrimination has historically been focused on practices which disproportionately disadvantage particular groups of people (and cannot be justified). The situations addressed by DRD related typically to individual acts and decisions regarding a particular individual. As the quote above suggests it will often be difficult to construct an appropriate group (even hypothetically).
This point is reinforced by the recent decision regarding indirect religious discrimination, Eweida v British Airways . This examined the related issues of what is meant by a particular disadvantage’ and the appropriate pool for comparison. The case involved a Christian who alleged disadvantage because she was required to remove the cross which she always wore around her neck. In many cases of religious discrimination the adverse effect can be highly personal so that group disadvantage does not automatically follow. Ms Eweida had not produced any evidence that other Christians had been similarly affected.
It is easy to imagine the evidential difficulties for Ms Elweida – and all the more so for many disabled people seeking to challenge decisions. Even if there is only a need to identify one other person who is similar and who has or could have experienced the same particular disadvantage, then this will put the threshold of proof at an unacceptable high level.
As Lord Brown states in the Malcolm judgment, the situations addressed by disability-related discrimination are highly individualised and a group comparison will often be difficult if not impossible to construct.
In addition, courts would need to construct the phrase “provision, criterion or practice” in such a way that it includes individual decisions. The British Airways case referred to in the consultation is only decided at the EAT level, and so cannot be relied on as superior courts may well over-rule it.
A further major disadvantage of this option is that indirect discrimination still relies on a like-for-like comparison between disabled people and others. Without removing this comparison requirement, the consequences of the Malcolm judgement will still remain.
The Equal Opportunities Review in December 2008 commented on this consultation. This is one of the leading legal journals on equal opportunities.
That article supports our questioning of the operation of indirect discrimination in relation to disability.
It emphasizes the difficulty that courts will have framing the correct comparator. Referring to the example in the consultation concerning guide dogs it says: “ It might be questionable whether a restaurant's policy of excluding all dogs places disabled people generally at a particular disadvantage, so it would have to be open to a disabled claimant to be able to frame their claim narrowly by reference to their own particular impairment, eg a policy of excluding dogs places disabled people who require the assistance of a guide dog at a disadvantage compared with people who do not require the assistance of a guide dog.
The danger is that unless this is made clear on the face of the legislation, the courts will say, as did Lord Scott, that framing the case in this way "emasculates the statutory comparison". “
The article goes on to argue:
“Similarly, the consultation says that the "modern approach" will assist with one-off instances of indirect discrimination. Referring to British Airways plc v Starmer, the Government says that "recent case law in relation to indirect discrimination covering other protected characteristics has provided that an action for indirect discrimination can also be brought in relation to 'one-off' instances of discrimination and so claims would not be limited to challenging widespread policies." Without questioning that particular EAT decision, the concept of indirect discrimination is essentially a group one, so that if the Government wishes to ensure that a single act or omission can amount to a "provision, criterion or practice", this should be said expressly in the legislation, and not left to the interpretation of the courts.”
As explained above these points arise specifically in relation to disability because of the nature of discrimination that disabled people face.
Disability related discrimination
The best option is to amend the disability related discrimination to address the flaws which led to the Malcolm decision. The explicit basis for the Malcolm decision was the requirement within DRC for a comparator.
Lord Scott expresses this most clearly and links this to the issue of knowledge.
“The Lord Justice’s conclusion [in Clark v Novacold] emasculates the statutory comparison. What is the point of asking whether a person has been treated “less favourably than others” if the “others” are those to whom the reason why the disabled person was subjected to the complained of treatment cannot apply? If a person has been dismissed because he is incapable of doing his job, what is the point of making the lawfulness of his dismissal depend on whether those who are capable of doing their job would have been dismissed? If a person has been dismissed because he will be absent from work for a year, what is the point of making the lawfulness of his dismissal dependant on whether those who will not be absent from work will be dismissed? If a tenant has been given notice terminating his tenancy because he has sub-let in breach of the tenancy agreement, what is the point of making the lawfulness of the action taken by his landlord dependant on whether notice to quit would have been served on tenants who had not sub-let? Parliament must surely have intended the comparison directed by section 5(1)(a), or by section 24(1)(a), or, for that matter, by section 20(1)(a) where the directed comparison is in identical terms, to be a meaningful comparison in order to distinguish between treatment that was discriminatory and treatment that was not.
The pointlessness of the comparison if the Clark v Novacold interpretation of the comparison directed by the statute is adopted not only suggests very strongly, in my opinion, that the interpretation cannot be right, but also provides support for the view I have expressed on the first question. If it is right, as I think it is, that “a reason which relates to the disabled person’s disability” requires that the infirmity of the person in question should be at least part of the alleged discriminator’s reason for subjecting him to the treatment complained of, the problem that vexed Mummery LJ melts away. The words “that reason” naturally then refers to the reason that relates to the disability. But many decisions are made for a multitude of reasons, some consequential on others, and the decision maker would often be hard put to identify a single determinative reason for the act or omission in question. If the physical or mental condition of the complainant is the only reason for the treatment complained of then the statutory comparison will demonstrate that there has been unlawful discrimination. But if, as will often be the case, there are other reasons as well, the statutory comparison would require the disability reason to be left out of account and the question to be asked would be whether in the absence of that reason, the “reason that relates to the … disability”, the complained of treatment would have happened. “
The problematic language in the existing DRD provisions is best resolved by removing the comparator requirement and by explicitly addressing the issue of knowledge.
The underlying practical problem with DRD in the housing context was the limited nature of the legal justifications available. This issue would also need to be addressed – by adopting an approach that already applies in relation to DRD in public functions (as well as being the justification for indirect discrimination) - “a proportionate means of achieving a legitimate aim.”
We propose the following wording:
“A person would discriminates against a disabled person where he carries out an act which disadvantages that person for a reason connected with their particular disability, and which cannot be justified as being a proportionate means of achieving a legitimate aim.”
Before a justification could apply the employer/landlord etc must have complied with the reasonable adjustment duty
The EOR article referred to above again concurs with this proposal:
The second alternative would be to remove the need for a comparator. A disabled person would merely need to show that they had experienced a detriment because of the impact of their impairment. The disabled person would not need to demonstrate that they had been treated less favourably than others whose circumstances were the same, or not materially different. Those advocating this option see some parallels with pregnancy discrimination, although an employer would still be able to objectively justify such disability-related discrimination. The Government view, however, is that "this would risk rendering direct disability discrimination superfluous and add undue complexity to the legislation, contrary to the principle of harmonisation that the Equality Bill aims to achieve." The consultation adds that this option "would enable disabled people to very easily demonstrate an apparent case of indirect discrimination" and therefore "would disturb the balance that the Government seeks to achieve between the rights of disabled people and the interests of duty-holders".
It is difficult to reconcile this argument with the ostensible policy objective quoted earlier, that: "It should be relatively easy for a disabled person to be able to establish a prima facie case of less favourable treatment, but balanced against this should be the opportunity for the duty-holder to justify that treatment."
Our view is that removing the need for a comparator would be the best option, precisely because it would continue to treat disability discrimination as different from the other strands of discrimination. However, the Government's concerns about the possible need to legislate in respect of a Directive yet to be adopted, that does not affect employment, appear to be driving the agenda. The problem is not the dog, but the tail wagging the dog.
Need to clarify issue of knowledge
The Malcolm judgement also inflicted another significant restriction on the reach of DRD by requiring that the disability related reason must be present in the mind of the defendant. Before Malcolm, despite some judicial criticism, it was generally accepted that the link between the reason for the relevant treatment and the disability of the claimant was to be assessed objectively without reference to the defendant’s knowledge or motive.
Malcolm established that liability for DRD only arises where the alleged discriminator either knew or ought to have known of the disability. It is unclear whether intent or motivation is also required.
Whilst this sounds reasonable, this ‘subjective’ approach would present a major practical obstacle to disability rights, even if the comparator issue was resolved. An article in the New Law Journal explains: “In every case…the court will have to undertake a factual enquiry as to whether or not the landlord was aware of the disability and the extent to which that played a part in his decision This is likely to be a difficult and time-consuming exercise. .. the tenant’s task of showing that the landlord was motivated by a tenant’s disability… is an unenviable one, as the question will often turn on the private thoughts of a single individual. The allegation that the landlord has discriminated against a disabled tenant is a serious matter and the court would presumably not wish to make such a finding unless there were cogent evidence to support it. On the other hand, if the evidential bar is set too high s22 of the DDA 1995 will be denuded of its intended effect.”
The statute needs therefore also to make clear that to establish disadvantageous treatment there is no need to show that the alleged discriminator knew about the individual’s disability – but that this issue might be relevant to the issue of justification.
Question 1. Do you agree that the Equality Bill should adopt the concept of indirect discrimination for disability? If you disagree, please explain your reasons for this and whether you consider any adverse consequences would arise from adopting indirect discrimination.
We agree that the Government may need to adopt the concept of indirect discrimination, because this will be required if the proposed Article 13 Directive is adopted.
Indeed it could be a powerful additional tool for combating practices which disproportionately disadvantage particular groups of people. But must be adapted to reflect disabled people’s experiences.
Indirect discrimination – disability
(1) For the purposes of these provisions, a single
action or omission can constitute the application of a ‘provision, criterion
or practice’.
(2) For the purpose of these provisions, “other persons” are those
in the same or similar circumstances, excluding the disability and any matter
connected with the disability and consequential to it.
(3) For the purposes of these provisions, whether or not the duty-holder knew
that a person was disabled and/or could reasonably be expected to know that
a person was disabled shall not be relevant other than in relation to questions
of remedy.”
Even with this approach, we feel that there is still scope for confusion and
uncertainty, and a risk for lengthy cases. That is why we prefer a specific
provision for disability-related discrimination. This will achieve consistency
of the level of protection from discrimination across strands.
Also, a separate provision would allow ‘indirect discrimination’
to be developed further in a direction that is appropriate for other strands
as well as fair for duty-holders.
Question 2. Do you agree that the Equality Bill should include a provision that requires a duty-holder to fulfil the duty to make reasonable adjustments before that duty-holder can seek to objectively justify indirect discrimination?
Yes
Question 3. Do you agree that the assumptions underpinning the regulatory impact assessment and equality impact assessment are realistic?
We believe that the impact assessment underestimates the increased complexity of cases. In the event that a disabled person claims indirect discrimination, then this will inevitably lead to extra costs and time to support or to disprove the claim.
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