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This page outlines proposed changes on the meaning of 'disability', and also on what grounds of discrimination can be unlawful. The proposed changes would not necessarily apply to Northern Ireland.
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.
In the Equality Bill (Schedule 1) the Government is 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 'disability'. What could help with stammering is if the legal definition of disability were extended (see below).
In Coleman v Attridge Law (July 2008) the European Court of Justice (ECJ) decided that 'discrimination by association' can be illegal in the workplace, under the Framework Employment Directive. Direct discrimination and harassment are likely to be prohibited even if they are not against the disabled person himself. An example is the situation considered in the Coleman case itself, namely discrimination against a mother because her child has a disability.
This is reflected in the Equality Bill published on 27th April 2009. The new definitions of 'direct discrimination' and 'harassment' (in clauses 13 and 24) are intended to include protection for those who are 'associated with' someone who is disabled, or those who are 'perceived' to be disabled. Harriet Harman had announced on 3rd April that:
"The Equality Bill will ... prohibit direct discrimination and harassment based on association and perception in respect of race, sex, gender reassignment, disability, sexual orientation, religion or belief and age and in relation to both employment and areas beyond this, such as goods, facilities and services.
"This extension will implement the Coleman judgment in Great Britain and the extension to other protected characteristics is in keeping with the aims of the Equality Bill to simplify and strengthen the law." Full written statement by Harriet Harman (link to Hansard).
Discrimination by perception is likely to cover situations where the discriminator thinks a person has a disability which he does not have, and discriminates against him for that reason. This could be relevant to stammering if the stammer does not actually have a substantial effect but the employer perceives it to have - see Perceived disability.
Extending the right beyond employment, e.g. to provision services, goes beyond the requirements of European law and the Coleman case. Also, note that there will not be a right to reasonable adjustments, nor against indirect discrimination - though outside of the DDA there is already a right to request flexible working (link to direct.gov.uk). In April 2009, the House of Commons Work and Pensions Committee considered that carers should be given a right to reasonable adjustments under the Equality Bill (para 53-61 of their Report The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk), and that carers should also be covered by the equality duty on public authorities (para 213)
The Equality Bill wording intended to cover discrimination by association or perception is actually in much more general terms - it talks of discrimination or harassment 'because of' or 'related to' disability. There have been calls, including from the Equality and Human Rights Commission, for the Bill to be clearer in expressly mentioning discrimination by association and perception. The Government rejected an amendment to this effect in the House of Commons Committee (col 251-256, Public Bill Cttee, 16th June 2009 (link to UK Parliament website)). The Solicitor General gave examples of instances, going beyond association and perception, that the Government intended the wider wording to cover:
"...The 'because of' turn of phrase in clause 13 is broad enough and is intended to be broad enough to cover much more than just cases in which the less favourable treatment is due to the victim's association with someone who has the characteristic or because the victim is wrongly thought to have that characteristic. The formulation is intended to and does cover cases, for instance, of less favourable treatment because of a refusal to comply with instructions to discriminate. It is also intended and does cover a case in which someone is treated as if they had a protected characteristic that they neither have nor are perceived to have at the time.
'Direct discrimination' has a number of forms - a lot of different forms. Even after the Bill, what the definition covers will continue to evolve through the case law. That is really the point. We do not want, by specifying particular kinds of direct discrimination, to imply that we are excluding kinds of discrimination that might come about in a situation that we have simply not foreseen when setting out the clause. So, we favour what we see as a broad formulation."
Regarding discrimination by perception, it seems that the claimant will need to show he was perceived to meet the legal definition of disability, i.e. to have an impairment with the required substantial and long-term effect. The Government opposed amendments to the contrary put forward in the House of Commons Public Bill Committee. Apparently, in the United States the Americans with Disabilities Act of 1990 specifically provides that a person is regarded as being perceived to be disabled if they are discriminated against based on that belief, whether or not the effects of the perceived disability meet the definition of disability under that Act. (col 251, Public Bill Cttee, 16th June 2009 (link to UK Parliament website)).
A Minister commented in the House of Lords debates that extending protection to perception will mean a person with a depressive condition who does not satisfy the Bill's definition of a disabled person will be protected if, for example, their employer discriminats against them because he considered mistakenly that the impairment is likely to recur (my emphasis). Col 1338 HL Hansard 2/3/10 (link to UK Parliament website).
See also Employment: Discrimination by association or perception.
Links to news reports:
The Equality Bill is now to cover direct discrimination on up to two combined grounds, e.g. disability and gender, or disability and race. The Government considers it too complicated and burdensome to allow claims on three or more different discrimination grounds.
Dual discrimination is covered in a new clause added to the Bill in July 2009 and subsequently amended. The current version appears in the 4th December version of the Bill as clause 14: "Combined discrimination: dual characteristics" (link to Equality Bill clause 14, on Parliament website).
As well as being limited to two combined grounds, the clause is limited to direct discrimination. So it does not apply to harassment, nor to indirect discrimination, nor to discrimination arising from disability. However:
The Government has confirmed to Parliament that for the purpose of dual discrimination, even if one satisfies the definition of disability by a combination of impairments, that will be treated as the single protected characteristic of disability. (HL Hansard 19/10/09, col WA38-39, and HL Hansard 13/01/10 col 547).
Further links:
Currently people can only claim they have been treated unfairly because of one particular characteristic, for example their disability or their race. The Government explains: "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." (Framework for a Fairer Future (link to equalities.gov.uk), June 2008)
The Government launched a consultation on 27th April 2009, alongside the publication of the Equality Bill: 'Assessing the impact of a multiple discrimination provision' (pdf, link to equalities.gov.uk).
The consultation sought views on Government plans to introduce a provision covering multiple discrimination. Key features of the proposal were:
The Government proposal and new clause are aimed at 'intersectional' multiple discrimination, as the area not properly covered by current law. The consultation document distinguished this from 'additive' multiple discrimination:
Examples of 'intersectional' multiple discrimination given in the consultation document include:
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 - i.e. '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
For an impairment to be a disability, its effect on normal day-to-activities must be 'substantial'. The Bill will now define 'substantial' to mean 'more than minor or trivial'. The Government accepted an amendment to this effect by Lord Low (col 1339 HL Hansard 2/3/10 (link to UK Parliament website)).
As the tribunal said in Goodwin v Patent Office (1999): "'Substantial' might mean 'very large' or it might mean 'more than minor or trivial'. Reference to the Guidance shows that the word has been used in the latter sense..."
The official guidance and the lower courts have indeed given the term this latter meaning. However, in SCA Packaging v Boyle it was suggested in the House of Lords that, despite such Guidance, judges start with a clean slate when deciding what legislation means. This provision in the Equality Bill is a very welcome clarification to help guard against unpleasant surprises if the meaning of 'substantial' is challenged in higher courts.
It has been proposed that an impairment should not need to have a 'substantial' or 'long-term' effect in order qualify as 'disability'. This would be a very important change. For more, see Proposed changes: wider definition of 'disability'?
The Government considers that the balance does not, at this time, favour legislation to prohibit genetic discrimination. This is partly because there remains little hard evidence of a problem at present. Also there is a moratorium with the insurance industry which has been extended to 2014. Should legislation appear necessary in the future, it may be more appropriate to strengthen data protection legislation or make specific rules. (Government response to the Discrimination Law Review, July 2008, 15.14ff)
The DRC had 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. However, this would not necessarily be part of the DDA. It pointed out that the Human Genetics Commission had said they think legislation is needed. (A Framework for Fairness Response (on archived DRC website), pages 69-70).
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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© Allan Tyrer 1999-2010
Last updated 6th March, 2010
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