Proposed changes on meaning of "disability"

This page outlines proposed changes on the meaning of 'disability', and also what grounds of discrimination can be unlawful. The proposed changes would not necessarily apply to Northern Ireland except where specified.

New Northern Ireland guidance

The official guidance on how the DDA definition of 'disability' should be interpreted has being changed in Northern Ireland, with effect from April 2008. For more see my Northern Ireland page.

Removal of list of 'capacities'

Broadly, the DDA defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on one's ability to carry out normal day-to-day activities. It goes on to say that an impairment can only be taken to affect normal day-to-day activities if it affects at least one of a number capacities, such as mobility, manual dexterity, speech etc. The Government proposes to remove this list of capacities from the definition of disability. It would no longer be necessary to show that the impairment affects mobility or speech etc.

Whether the list is there or not is not really relevant to stammering. The list of capacities includes 'speech', and so does not prevent stammering being treated as a 'disabilitiy'.

The proposal is subject to consultation and is contained in the Green paper on proposals for a Single Equality Bill (para 8.3-8.6).

The Disability Rights Commission considered that the removal of the list will not help much. It favours a complete change in the definition of disability as discussed below. If the list is removed, the DRC said it is vital that detailed guidance is produced to provide a steer to courts and tribunals as to what is a 'normal day to day activity'. In particular, the Government needs to ensure that this proposed change does not undermine existing case law, as this would be a recipe for renewed confusion. (A Framework for Fairness Response (on archived DRC website), pages 68-69).

Multiple discrimination

The Government says (in its June 2008 announcement) that currently, people can only bring a claim that someone has treated them unfairly because of one particular characteristic, for example their disability or race. "However, there are situations where people are discriminated against because of a particular combination of characteristics. For example, a black woman may suffer prejudice or harassment that is not faced by a black man or a white woman. We want to allow discrimination claims to be brought on combined multiple grounds. This is a very complex area and we are exploring this further, including how the legislation would work in practice and what the costs and benefits would be."

In its 2007 Green Paper the Government had been less keen on legislating for multiple discrimination. It asked whether or not special provisions were needed, and invited evidence of people who are losing or failing to bring cases because they involve more than one protected ground. Until they had that evidence, they were rejecting the proposal that combined multiple claims should be permitted. (Green paper para 7.31ff).

The Equality and Human Rights Commission believes that a new Equality Bill should include protection against discrimination and harassment on multiple or intersectional grounds, reflecting the reality of many people's experience. The EHRC gives an example of where an employer refuses to employ an older woman, and already employs a number of women and a number of older men. The discrimination cannot be said to be on grounds of age or on grounds of sex, but on the intersection of sex and age. For more, see pages 34-36 of the EHRC's Discrimination Law Review response (link to Word doc on EHRC website).

The Disability Rights Commission also supported proposals for clear coverage of multiple discrimination and believed this would be straightforward to achieve, in part through a purpose clause. (A Framework for Fairness Response (on archived DRC website), page 68)

The Court of Appeal held in 2004 (Bahl v the Law Society) that under current law the tribunal must basically consider claims under each ground separately. This poses a problem if two discrimination grounds interact so as to be inseperable - sometimes called 'intersectional discrimination'. Lawyers have been forced to take up cases on the strongest ground, rather than arguing what may be the true position that discrimination is actually on combined grounds. For more, see www.edf.org.uk/news/Multiple%20Discrimination.doc

Legal definition of disability to be extended?

The Disability Rights Commission recommended in July 2006 that the DDA definition of disability should be altered to cover any impairment, without having to show that its effects are substantial or long-term. The cross-party Parliamentary Scrutiny Committee on the Draft Disability Discrimination Bill had argued:

"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."

At present the Government is not accepting this recommendation. The Government considers that disability discrimination law should only protect those people who are disabled in the generally recognised sense of the term (Green paper para 8.4)

There is still a chance that things will change as a result of views expressed on the Green Paper - though the Government did not ask for views on the point. The DRC's full recommendation ('Definition of Disability within anti-discrimination law: Recommendation to Government') was on their website but seems to have got deleted in handing over to the EHRC. However the DRC's views are also stated in their 2007 A Framework for Fairness Response (on archived DRC website), pages 14-16.

The idea behind the DRC recommendation is that disability discrimination law should move away from protecting a group of 'disabled' people and instead protect anyone who experiences discrimination on the grounds of an impairment. If the definition is amended in this way, it would no longer normally be an issue whether the complainant has a disability. The focus would shift to such issues as whether there has been discrimination.

Under the extended definition, hopefully anyone with a stammer would be protected by the DDA, even if clinically the stammer's effect is only limited. Compare the current position. The recommendation says that help on interpretation of 'impairment' could be provided by statutory guidance and Ministerial statements in Parliament.

The DRC also recommended:

considering the exclusion from the definition of a limited number of trivial conditions such as flu, for both policy and presentational reasons;
considering steps to ensure that positive discrimination continues to be legal, with a new provision making it clear that employers and others can discriminate positively in favour of a narrowly defined targeted group of disabled people;
if the main DDA definition is changed, providing a more targeted definition of disability for the public sector duty, requiring public authorities to focus attention on those who are most excluded as a result of their impairment. Eg there might be a requirement on them to promote equality for "people with impairments who are substantially excluded". Who is covered by this might vary according to the nature of the service.

The DRC's recommendation followed a consultation, to which the British Stammering Association contributed - Definition of disability consultation document (on DRC website). The recommendation was part of reviews taking place with a view to introducing a Single Equalities Act.

This proposal relates to a possible change in the legal definition, whereas the Northern Ireland guidance mentioned above - and the May 2006 guidance already applying to the rest of the UK - relate to how the existing legal definition should be interpreted.

Even if the DRC's recommendation is accepted by the Government, it would probably not take effect until 2010 or later.

Discrimination because of association or perceived disability?

European case on discrimination by association

In Coleman v Attridge Law (July 2008) the European Court of Justice (ECJ) decided that 'discrimination by association' can be illegal in the workplace. Direct discrimination and harassment are likely to be prohibited even if they are not against the disabled person himself. Thus an employee had a claim if she was discriminated against - or harassed - because of her child's disability. The ruling does not apply to reasonable adjustments, nor to fields not covered by the Framework Employment Directive. More on Coleman case...

Previous UK views

In its 2007 Green paper on proposals for a Single Equality Bill, the Government said it was not persuaded that it would be a proportionate approach to extend DDA protection to those who are perceived to be disabled or who associate with disabled people (para 1.22). On the second point at least, however, the Government will presumably now amend the DDA following the Coleman case.

The Disability Rights Commission, on the other hand, had recommended that discrimination because of an association with a disabled person or because a person is mistakenly treated as disabled should be explicitly included in the DDA. The DRC argued that this change is required by the Framework Employment Directive. For cases of discrimination by association or perception there should be a right to equal treatment - but not to reasonable adjustments, because under the directive only disabled people have a right to adjustments. The DRC recommended this, not for the first time, in its July 2006 'Definition of Disability within anti-discrimination law: Recommendation to Government' (part 8 of the document) - and again in pages 32-33 of its 2007 A Framework for Fairness Response (on archived DRC website).

Genetic discrimination?

The DRC considered there should be legislative protection from discrimination on the basis of genetic predisposition, and from requirements to undergo a genetic test or to disclose the results of one. This would not necessarily be part of the DDA. It pointed out that the Human Genetics Commission has said they think legislation is needed. (A Framework for Fairness Response (on archived DRC website), pages 69-70).

The Government Green paper (para 8.23ff) proposes there should be no legislation and asks for views on this.

Is this relevant to stammering? Genetic make-up seems to make some people more disposed to have a stammer, but does not make it inevitable the person will stammer - www.stammering.org/research_links.html#genetics. However stammering, if it develops at all on a genetic basis, will normally be apparent from early childhood in any event.

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