“Equality Bill must take broader approach on disability discrimination, Committee says”
The Work and Pensions Select Committee today, Wednesday 29 April 2009, publishes its Third Report of Session 2008-09, entitled “The Equality Bill: how disability equality fits within a single Equality Act” (HC 158).
The report welcomes the Government’s intentions to simplify and streamline legislation across the different equality strands into one single Equality Bill. This will make discrimination law compliance and understanding easier. However, the Committee believes that disability discrimination requires a difference in approach compared to other equality law. Rather than being based on the idea of treating people in the same way, it should be predicated on the idea that we need to treat people differently to accord disabled people equal opportunities. The challenge is to bring disability discrimination law within that broad family of equality law whilst recognising those key differences.
The Government has to respond to the recent judgment in the Lewisham v Malcolm case, which changed the previously accepted meaning of disability-related discrimination. The Report recommends the Government use the opportunity the Equality Bill presents to re-establish a version of disability-related discrimination that existed before the Malcolm judgment, which was well understood by employers and employees alike. Preserving strong disability rights by re-instating a modified version of 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.
The report finds that the Government still has a long way to go to achieve greater equality in employment for disabled people, carers and older workers. Whilst the overall employment rate of disabled people has increased, the employment rate for people with mental illness, phobias or panic has remained substantially lower (at just over 10%) than the employment rate for those with most other types of impairment. The Government needs to refresh its approach to supporting disabled people into employment and to make sure it reflects the added complexity of needs of people with mental illnesses and learning disabilities.
One of the greatest obstacles to improving employment opportunities for older people is the continued existence of the statutory default retirement age in the Employment Equality (Age) Regulations 2006. The Committee believes that this regulation contradicts the Government’s wider social policy and labour market objectives to raise the average retirement age and allow people to continue to work and save for their retirement and should be removed.
The report welcomes 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, this 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. The Committee believes that the Bill should make this provision.
The report also identifies recruitment as the most common source of discrimination against disabled people. It therefore endorses the Disability Rights Taskforce’s recommendation that disability related enquiries before a job offer should be permitted only in very limited circumstances. The Committee is also extremely concerned by the evidence from the Employers’ Forum on Disability that 85% of online recruitment sites were inaccessible and that 1.3 million people were being prevented from applying for jobs.
The report state that the provisions in goods, facilities and services lack teeth. It is not difficult to see on any high street the number of service providers who have failed to comply with the reasonable adjustment duty. The Committee believes that the Government should introduce provision for an equality tribunal in the single Equality Bill, empowered to hear all types of discrimination claims, but with the ability to transfer certain types of case - such as housing or actions against the police - to other courts where appropriate.
Committee Chairman Terry Rooney said:
“Our Committee warmly welcomes the increased simplicity the Equality Bill will bring to understanding and complying with Discrimination law. However, the evidence we took persuaded us that more needs to be done to ensure that the right approach is taken with regard to disability discrimination. This by nature should be based on treating people differently in order to encourage equal opportunities. We hope our report will provide a constructive contribution to ensure that this is done and done in the right way.
In any event, relying upon individuals to bring about systemic change through individual litigation places a heavy burden upon disabled people who, in many instances, experience discrimination on a daily basis which would be time consuming and exhausting to challenge on each and every occasion. We recommend that the Government introduces provision for class and representative actions and extends powers for employment tribunals to make recommendations that employers amend their policies or practices and to order reinstatement.
The Equality and Human Rights Commission has a unique role as the only public organisation that has responsibility for all equality and diversity strands and should take a more strategic role in monitoring and researching enforcement of equality legislation.
We completed our inquiry before the Equality Bill was published but we intended that our report should inform consideration in both Houses of this important legislation.”