Protecting the disabled
Rakesh Patel provides an overview of the changes the government proposes to make to disability discrimination in the employment field
The equality bill introduced the concept of eight different protected characteristics: sex, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, disability, religion or belief, sexual orientation and age.
Already a complicated area of the law, the proposed changes in the Bill to disability discrimination in the employment field are unlikely to do much to resolve those complexities.
Meaning of “disability”: Clause 6
The definition of disability in the Bill is more or less the same as the definition in the current legislation, focusing on the “physical or mental impairments” of individuals.
However, the requirement to show that this affects their ability to carry out normal day-to-day activities is no longer dependent on proving that it affects one of eight specified functions: mobility; manual dexterity; physical co-ordination; continence; ability to lift or carry everyday objects; speech, hearing or eyesight; memory or ability to concentrate, learn or understand; or perception of the risk of physical danger.
While this should make it slightly easier to establish that a person has a disability, it is a pity that the government did not take this opportunity to extend protection to a much wider group of disabled people by adopting a more “social” model of disability (as opposed to this very “medical” model).
The social model would have extended protection from discrimination in direct discrimination or disability-related discrimination cases to everyone who has (or has had) an impairment without requiring the effects of that impairment to be “substantial or long-term”.
It would also have focused on whether or not the treatment of an individual was justified, or whether it was on the grounds of their impairment, and recognised that it was inequitable to protect some disabled people from discrimination but not others because their impairment was less significant.
Direct discrimination: Clauses 13 and 24
The new definitions of “direct discrimination” and “harassment” are intended to include protection for those who are “associated with” someone who is disabled, or those who are “perceived” to be disabled, as covered in the preceding article.
Discrimination arising from disability: Clause 15
The government has also used the Bill as an opportunity to resolve the difficulties caused by the decision of the House of Lords in Mayor and Burgesses of the London Borough of Lewisham -v- Malcolm (see weekly LELR 81).
In this case, the Lords said that the comparator for a disabled person should be a non-disabled person, but one who was in the same circumstances as them.
This overruled previous case law which did not require a disabled person to show they were in the “same or similar circumstances” as a non-disabled person. In other words, the treatment of a disabled person was compared to someone to whom the disability-related reason did not apply.
For example, if a disabled person who had been absent for a year due to sickness was dismissed, the reason for the dismissal would be related to their disability. Under previous case law the disabled person could show less favourable treatment because the comparator was someone to whom the reason did not apply. In other words, someone who has not been absent.
After Malcolm, the comparator would have to be someone who was not disabled and who had also been off work with sickness for a year. In that situation it would be unlikely that the non-disabled person would not also be dismissed. That has made cases for disability-related discrimination very difficult to pursue.
The Bill has got round this problem by creating two new heads of discrimination: discrimination arising from disability (an entirely new concept); and indirect discrimination.
Clause 15 of the Bill sets out the new definition of discrimination arising from disability as follows:
“(1) A person (A) discriminates against a disabled person (B) if –
(a) A treats B in a particular way,
(b) because of B's disability, the treatment amounts to a detriment, and
(c) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”
Because there is no need for a comparator under the new definition, the problems raised by Malcolm will no longer be an issue. The new definition also says that the discriminator has to know about the disability in order to be liable for discrimination.
However, the new definition has thrown up other issues as it is not clear if it remedies all the problems caused by Malcolm.
The wording “because of B’s disability” rather than “related to B’s disability” (as in the current legislation) may mean the protection is narrower than that available before the Malcolm decision. The wording “because of” suggests intent or motive to discriminate, which is not currently required.
Thompsons understands that the government intends to further revise the wording of clause 15 to make sure its intention to remedy the effect of Malcolm is successful.
Indirect discrimination: Clause 18
In addition to discrimination arising from disability, the government proposes that the concept of indirect discrimination should also cover disability as a further mechanism to remedy the problems caused by Malcolm.
The definition is the same as that found under the other strands of discrimination. In other words, it is indirectly discriminatory for an employer to operate a “provision, criterion or practice” which, on the face of it, seems neutral in relation to disability, but in practice, works to the disadvantage of one (or more) disabled group.
However, given that definition, it is difficult to see how disability can be treated as a “group” or “class” as the types and degrees of disability are infinite. Even the way in which the same disability affects one individual compared to another will vary.
The government also proposes to introduce a new ”justification” test, so that employers have to meet a higher threshold to justify their actions. For example, if an employer dismisses someone for a reason that relates to the person’s disability, they would need to show that their conduct was a “proportionate means of achieving a legitimate aim.”
The current “justification” test, whether the employer’s reason for less favourable treatment is material to the circumstances and substantial, is quite a low threshold to meet. The justification defence does not apply to direct discrimination. However, the Equality Bill does allow the new defence to be used to justify discrimination arising from disability and indirect discrimination.
The justification provision does not use the language of binding EU law, which states that an indirectly discriminatory provision, criterion or practice will be prohibited unless it “is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary”.
The government has refused to incorporate the term “necessary”, which means that the justification formulation will (compared to other discrimination strands) provide weaker protection than envisaged by EU law.