Proposed employment changes

This page outlines proposed changes relating to the employment rules, largely contained in the Equality Bill. Further changes relating to grievance and disciplinary procedures came into effect in April 2009. The proposed changes would not necessarily apply to Northern Ireland.

Links:
Equality Bill
Government response to the Discrimination Law Review (pdf file, link to equalities.gov.uk), July 2008

'Justification'

The Government is to introduce a new 'justification' test, so that employers have to meet a higher threshold to justify their actions - e.g. if they dismiss someone for a reason which relates to the person's disability. The employer would need to show that its conduct is a 'proportionate means of achieving a legitimate aim'. (Sources: Equality Bill clauses 14 and 18; Government response to the Discrimination Law Review, July 2008, para 11.22-11.28)

The Government says that the new test will provide a higher threshold than the DDA test currently used for employment and vocational training. In other words, employers will have a narrower margin of discretion. The new test is already used as a defence to 'indirect discrimination' related to race or sex. For how the courts apply the new test, see the EHRC website ("The legal test for justification in indirect discrimination cases").

The current 'justification' test, which is being abolished, is whether the employer's reason for less favourable treatment is material to the circumstances and substantial. This is quite a low threshold for employers to meet, partly because tribunals have refused to substitute their own decision as to whether the reason relied on by the employer is material and substantial. Tribuanals have restricted themselves to deciding whether the reason was within the range of what a reasonable employer would have relied on as material and substantial. (More on current 'justification' test..)

The justification defence does not apply to direct discrimination. However, the Equality Bill uses the new defence in clause 14 (discrimination arising from disability) and clause 18 (indirect discrimination). The defence, however formulated, is of little importance at present because the House of Lords decision in LB Lewisham v Malcolm (2008), has largely done away the discrimination to which it applies. The new clauses 14 and 18 are intended to remedy the effect of that case (see Remedying the Malcolm case).

The new test does not just apply to employment. Nearly all the different 'justification' tests for disability discrimination are being replaced by this single objective test. E.g. it will apply also to service providers.

'Appropriate and necessary' rather than 'proportionate'?

The former Disability Rights Commission (DRC) supported a single objective justification test, as currently proposed in the Equality Bill, but argued that the wording should be strengthened to reflect more closely EU directives applying in other contexts. Justification should only be possible where the treatment in question is 'objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary'. "Necessity provides a high standard," said the DRC. If discriminatory provisions, criteria or practices are to be permitted, this should only be on the basis that they are 'necessary' to the operation of the business or service not merely that they are seen to be 'a proportionate means of achieving a legitimate aim'. (A Framework for Fairness Response (on archived DRC website), p.33-36).

In April 2009 the House of Commons Work and Pensions Committee also supported this change in wording: paragraph 40 of The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk).

The Government has rejected this. The issue came up again in the House of Commons Committee on the Equality Bill (col 282-283, Public Bill Cttee, 16th June 2009 (link to UK Parliament website)), and the Solicitor General explained the Government's reasons for insisting on the word 'proportionate' rather than 'appropriate and necessary':

"...Means that are 'proportionate' must be 'appropriate and necessary'... Both concepts are included in the test that we have used, but they need not be necessary in the sense of being the only possible means of achieving a legitimate aim. It is sufficient that the means are not more discriminatory than any other means that could have been chosen to achieve the same end...

There is a risk that changing language well established in British law could lead to an excessive narrowing of the scope of justification beyond what the directive requires, because that change could be - and 'necessary' has been - interpreted very strictly by our courts. However, they are obliged to interpret the legislation compatibly with the directive and they know how to do that. In a nutshell, this is well-tried and well-used language that everybody understands."

Remedying the Malcolm case

The Equality Bill published in April 2009 contains two new heads of disability discrimination, which are intended to address the House of Lords decision in London Borough of Lewisham v Malcolm. That decision severely limited the scope to make a claim for less favourable treatment. More on Remedying the Malcolm case.

Pre-employment enquiries

A new clause 60 has added to the Equality Bill to discourage employers from asking about an applicant's health (including whether the applicant has a disability), unless the enquiries are for particular permitted purposes. The clause would apply to enquiries in the application form or a medical questionnaire, as well as questions at the interview itself.

Permitted pre-employment enquires:

Clause 60 does not apply where the enquiries are for certain permitted purposes. In broad terms, the permitted purposes are as follows, where A is the employer and B is the job applicant:

establishing whether B will be able to comply with a requirement to undergo an interview or other assessment;

establishing whether a duty to make reasonable adjustments is or will be imposed on A in relation to B in connection with a requirement to undergo an interview or other assessment;

establishing whether B will be able to carry out a function that is intrinsic to the work concerned (if the reasonable adjustment duty arises then what is an intrinsic function may take account of adjustments - but there is a subjective test which is not easy to understand);

monitoring diversity in the range of persons applying to A for work;

taking 'positive action' within clause 157; or

if A applies in relation to the work a requirement to have a particular disability, establishing whether B has that disability (additional tests apply here).

There is also an exception related to vetting of applicants for work for reasons of national security.

Usually the clause applies to any enquiries made before an offer of employment, conditional or unconditional. Enquiries before this time are to be banned unless they are for a permitted purpose (see below). This ban can only be enforced by the Equality and Human Rights Commission, but the clause also gives rights to individuals in the sense of shifting the burden of proof. If an individual claims that conduct by the employer in reliance on information given in response to an offending enquiry is direct discrimination, then the burden of proof will shift to the employer who made the enquiry. In other words, it will be for that employer to show that he is not guilty of direct discrimination.

Enquiries for some purposes are still allowed (see box on right). The most important permitted purposes are: establishing whether the employer has a duty to make reasonable adjustments in connection with an interview or other assessment; establishing whether the applicant will be able to carry out a function intrinsic to the work concerned; and monitoring diversity.

See current text of new clause 60 (on UK Parliament website), as at 3/3/10. The clause was first added in December 2009 at Report Stage (link to original clause), and was amended on 19th January 2010 at the Lords Committee stage - from col 928 HL Hansard 19/1/10 (link to UK Parliament website).

The new provision has been welcomed by many: see Pre-employment health questionnaire ban backed by HR chiefs (link to Personnel Today article, 22/1/10).

My comment

The permitted purposes still give an employer scope to ask questions on disability, including stammering, before selecting people for interview.

At least if the job applicant who stammers will want reasonable adjustments at the interview, the employer will still be able to ask about that before selecting who they interview - and of course who is to say whether the employer uses that information in deciding who to interview. Se below the Disability Rights Taskforce report on this poing.
A person who stammers may also feel under pressure to disclose a stammer in response to a question on intrinsic job functions, which will often involve speech to some degree. This may depend on the wording of the question, and how far if at all the applicant feels the stammer will affect performance.
As regards monitoring diversity, perhaps the employer will only be able to ask about the broad category of the disability (eg physical, mental, sensory?) to reflect whatever categories it uses in its monitoring, rather than asking for the specific information that the disability is a stammer, for example.

In relation to enquiries before interview, the clause offers less protection than was recommended in 1999 by the Disability Rights Taskforce (link to leeds.ac.uk) - see recommendations 5.32-5.33 of the DRTF's report. That report had suggested that enquiries related to reasonable adjustments in the selection process should be permitted "when inviting someone for interview or to take a selection test" (my emphasis), so after the applicant has already been selected for interview. The Taskforce had also recommended there should be rules on confidentiality of information obtained for monitoring purposes; this is not covered by the Equality Bill if their idea was that the information should be confidential from interviewers.

One presumably wants enquiries to be permitted if they are to see whether a person is entitled to a 'two ticks' scheme guaranteed interview. This is probably intended to be covered by the reference to positive discrimination and clause 157, but I am not clear whether the wording achieves this.

The shift in burden of proof only applies to direct discrimination, not to the new heads of indirect discrimination or 'discrimination arising from disability' being introduced by the Equality Bill.

History

In April 2009 the House of Commons Work and Pensions Committee had said:

"We endorse the Disability Rights Taskforce's recommendation that disability related enquiries before a job offer should be permitted only in very limited circumstances. As a general rule such questions should only be permitted after a conditional/provisional job offer has been made. There will be cases where a job offer is withdrawn because of health-related concerns or because reasonable adjustment for a disability is not possible. However, the process would then be transparent, and where there is disagreement as to the decision, further consideration or mediation are possible."
(Para 156 of committee report The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk).)

The former Disability Rights Commission also believed that disability related enquiries before a job is offered should be permitted only in very limited circumstances. The DDA, it said, was proving inadequate in addressing recruitment problems. Asking questions about applicants' disabilities prior to job interview and selection enables employers who wish to discriminate to simply reject disabled applicants at an early stage. If an employer does not know that an individual has a disability, they will be unable to make prejudiced judgements on this basis. (A Framework for Fairness Response, pages 26-27).

A clause of this sort had previously been recommended by the Disability Rights Taskforce (link to leeds.ac.uk) in 1999. In part their recommendations are discussed above.

Harassment

Liability for harassment by customers etc

Employers are to be liable for harassment by third parties in some circumstances, e.g. customers or suppliers. (Harassment by other employees and agents is already covered.)

The employer is to be liable where a third party harasses an employee in the course of their employment, and the employer failed to take such steps as would have been reasonably practicable to prevent the third party from doing so. The liability is only if the employer knows that the employee has been harassed in the course of his employment on at least two other occasions by a third party - though it does not matter whether the third party is the same or a different person on each occasion. (Equality Bill clause 37).

This change may well be required under European law: see Harassment: Wider protection under EU law?

Harassment: Further changes

The general definition of harassment is being altered (Equality Bill clause 24).

Firstly the unwanted conduct need not be 'for a reason which relates to' the disability. The conduct need only be 'related to' a disability.
Secondly, the new definition is wide enough to cover harassment related to someone else's disability.

For more on those changes see Harassment: Wider protection under EU law?.

Harassment: Relevance of subjective perceptions

Concern has been raised that the new wording on harassment in the Equality Bill may allow more subjectivity, in the sense of allowing claims by a 'victim' who is hypersensitive. Such a 'victim' might say it was perfectly reasonable for him, because of his hypersensitivity, to consider that there had been harassment. The Solicitor General rejected this in the House of Commons Committee:

"the test has been set out in a case called Driskel v. Peninsula Business Services Ltd. The judgment said that the facts of a case in which harassment is alleged

'may simply disclose hypersensitivity on the part of the applicant to conduct which was reasonably not perceived by the alleged discriminator as being to her detriment... no finding of discrimination can then follow'.

What we have done is replicate the current law. The reassurance is helpful to make it clear that although clause 24(3) says that the perceptions of B, the victim, are an important factor, the question whether it is reasonable to regard something as harassment is not for the victim to decide - it is an objective test. "
(col 319-320, Public Bill Cttee, 18th June 2009 (link to UK Parliament website)).

Association and perceived disability

See Employment discrimination because of association, or perceived disability.

Victimisation

At the moment, victimisation generally requires that a person is treated 'less favourably' as a result of a 'protected act', such as bringing a DDA claim. In other words, there has to be a comparison with how someone else would be treated.

In the Equality Bill clause 25, the Government is removing the need to compare treatment with someone else. There is to be a right simply not to be subjected to a detriment as a result of bringing a DDA claim, for example. This is along the lines of other employment legislation. (Sources: Equality Bill clause 25; Government response to the Discrimination Law Review, July 2008, para 7.35-7.36)

Direct discrimination

'Because of' versus 'on grounds of'

The definition of direct discrimination in the Equality Bill says 'because of' disability rather than 'on grounds of' disability. This has caused concern that it will create uncertainty and could by interpreted more narrowly than the existing wording.

Resisting an amendment to change the wording back, the Solicitor General speaking for the Government said that the new wording was more accessible, but meant just the same as the old wording. In particular, intent was not required, and discrimination need not be the only ground for less favourable treatment (col 240-244, HC Hansard, Public Bill Cttee 16/6/09 (link to UK Parliament website)).

The point was also addressed in the House of Lords Committee. The Minister confirmed there that the objective test, irrespective of motive or intent, is part of European equality law, so that a narrower interpretation requiring intent would violate that and be invalid (from col 522 HL Hansard 13/1/10 (link to UK Parliament website))

More favourable treatment

The Government intends to come back at Report Stage of the Equality Bill with wording to make it clearer that it is lawful to treat a disabled person more favourably on the grounds of their disability. (col 256-258, Public Bill Cttee, 16th June 2009 (link to UK Parliament website)).

'Substantial' to be defined

For the reasonable adjustment duty to arise, there must be a 'substantial' disadvantage to the disabled person. 'Substantial' might mean 'very large' or it might mean 'more than minor or trivial'. The employment Code of Practice says that it means 'more than minor or trivial', but this is now to be confirmed by the legislation itself. The Equality Bill will 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)).

In SCA Packaging v Boyle it was suggested in the House of Lords that, despite guidance such as the Codes, 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 the higher courts.

Cost of reasonable adjustments

On 13th January 2010, a clause was added to the Equality Bill to make clear that a person required to make a reasonable adjustment is not entitled to require the disabled person to pay to any of the costs of complying with the duty. (There is a limited exception for where the law expressly says otherwise.) HL Hansard 13/1/10 (link to UK Parliament website) at col 565.

Recommendations by tribunals

The new Equality Bill is to give employment tribunals a wider power to make recommendations in discrimination cases (Clause 118(3) of Equality Bill; Framework for a Fairer Future; and Government response to the Discrimination Law Review, July 2008, para 6.2ff).

At present a tribunal can only make a recommendation which directly benefits the individual who brought the claim. Often though he will have left the organisation, so the Tribunal generally cannot make a recommendation (though see Ghali case). Under the new rules a tribunal will be able to make a recommendation to take certain steps with a specified period, even if it only benefits the wider workforce. This should help to prevent similar types of discrimination occurring in the future. An example might be a recommendation for awareness training in communication disabilities.

The Government has said that if the employer does not comply with a recommendation and a further claim is made, the tribunal will be able to take the earlier recommendation into account, which may result in a tougher ruling. Tribunal judgments, including recommendations, should in due course be available on the Tribunal Service's website so one can search for previous recommendations made to an employer.

The Government consulted on some practical points related to the extended power, including what guidance should be made available, in Section 4 of the BERR Dispute Resolution: Secondary legislation consultation - www.berr.gov.uk/consultations/page46889.html

The Solicitor General gave some clarification on the new power in response to questions in the House of Commons Committee on the Equality Bill. She was asked among other things what length of specified period was envisaged, and what leeway should organisations have to achieve a particular outcome since they may come up with ways of achieving it which are new and different from those envisioned by the tribunal. The Solicitor General said:

"The key is that any recommendations made to benefit the broader work force and indeed the business would have to be proportionate to the case that is brought, otherwise it would be unlawful. That is a general principle that has found greater emphasis since we brought the European convention into our law. To answer the specific point about time, it would have to be a reasonable period. There might be more creative ways of doing something that a tribunal recommends. The sensible thing would be for the parties to get together first, discuss it and suggest it to the tribunal, which could then recommend it. If parties thought there were a better way forward, that approach would give the tribunal the opportunity to avoid recommending something that was perhaps less suitable...

[And in respose to whether tribunals tend to mandate outcomes or process:] Some typical recommendations that might help include taking steps to implement a harassment policy more effectively; providing equal opportunities training for staff involved in promotion procedures; and introducing more transparent selection criteria in recruitment transfer or promotion processes. Those seem to be fairly process-based..." (col 512-513, Public Bill Cttee, 25th June 2009 (link to UK Parliament website))

Wider publication of tribunal decisions

It seems that Employment Tribunal decisions are to be made available on the internet at some stage. At present only Employment Appeal Tribunal decisions are online.

The Government has also said it will also explore how it can ensure employers learn from tribunal judgments by looking to spread learning from individual cases in a systematic way. (Framework for a Fairer Future (link to equalities.gov.uk) page 31, June 2008).

The European and Human Rights Commission has recommended that the results of employment tribunal discrimination cases, and also county or sheriff court discrimination cases, should be easily accessible by members of the public. This is because reputation is a significant factor in influencing decisions by employers to avoid discrimination and to adopt good equality practice. (Page 42 of the EHRC's Discrimination Law Review response (link to Word doc on EHRC website).)

Changes not being made at present

Representative actions

Representative actions would enable bodies such as trade unions or the Equality and Human Rights Commission to take cases to court on behalf of a group of individuals as a single claim.

The Government said that any proposals for reforming this area of discrimination law will be subject to a full consultation. It hopes to introduce any provision on this while the Bill is in the Lords.

(Sources: col 494 - 510, Public Bill Cttee, 25th June 2009 (link to UK Parliament website); A Fairer Future (link to equalities.gov.uk), April 2009, page 21; Framework for a Fairer Future; and Government response to the Discrimination Law Review, July 2008, para 6.45ff).

In April 2009 the House of Commons Work and Pensions Committee recommended that the Government introduce provisions for representative and class actions in the single Equality Bill, enabling bodies such as trade unions or the EHRC to take cases to court on behalf of a group of individuals - para 141 of committee report The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk).

Armed services

The Equality Bill (Schedule 9 para 4) still excludes employment in the armed forces from protection as regards disability. An amendment challenging this was resisted by the Government in the House of Commons Committee on the Equality Bill (col 346-349, Hansard, Public Bill Cttee, 18th June 2009 (link to UK Parliament website)) and also in the House of Lords Committee (from col 1278 HL Hansard 25th Jan 2010 (link to UK Parliament website)).

The Disability Rights Commission recommended that the armed services should be brought within the scope of the DDA.There could be a provision allowing discrimination for the purpose of ensuring the combat effectiveness of the armed forces. (A Framework for Fairness Response (on archived DRC website), p.41-42)

Volunteers

The current version of the Equality Bill does not seem to protect volunteers to any greater extent than at present - though that link reports on European law arguments before the courts which may require greater coverage of volunteers.

The issue of volunteers was considered in the House of Commons Committee on the Bill, where the Government set out why it does not intend to legislate for them (col 440-441, Public Bill Cttee, 23rd June 2009 (link to UK Parliament website)).

In April 2009 the House of Commons Work and Pensions Committee had said it 'strongly' believes that disability discrimination protection should apply to volunteers. "Volunteers currently have less legislative protection against discrimination than someone going into a sweet shop." See paragraphs 134-137 of committee report The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk).

The former Disability Rights Commision also recommended that volunteers should be brought within the scope of the DDA. (A Framework for Fairness Response (on archived DRC website), p.41-42)

Time limits, re-instatement etc

The former DRC, in its A Framework for Fairness Response (on DRC website), pointed to widespread non-compliance with the DDA and made the following further recommendations, which have not as yet been accepted by the Government:

The time limit for bringing an employment tribunal claim should be extended from 3 to 6 months. This would help people who simply do not know their rights, and also allow more time for informal resolution of disputes. (page 13)
Tribunals should be able to order reinstatement or re-engagement. It is an anomaly that this is possible for unfair dismissal claims but not under the DDA, and compensation is not adequate given the extreme difficulties disabled people can encounter in gaining alternative employment. (page 14) a)
In April 2009 the House of Commons Work and Pensions Committee recommended that tribunals should be given binding powers to order reinstatement in discrimination cases - para 140 of committee report The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk).
The European and Human Rights Commission has also agreed with this recommendation, and also considers that a tribunal should be able to order that a person who has been repeatedly refused a job because of discrimination must be automatically offered the next equivalent post - pages 40-41 of the EHRC's Discrimination Law Review response (link to Word doc on EHRC website).

The EHRC has said also that consideration should also be given to a system to refer findings of unlawful discrimination to any relevant licensing or qualification body. Page 43 of the EHRC's Discrimination Law Review response (link to Word doc on EHRC website).

Reasonable adjustment duty - Government rejects calls to make it anticipatory

The former Disability Rights Commision recommended a proactive duty on employers to consider reasonable adjustments which may be required by disabled applicants or employees, similar to that which already applies in relation to service delivery and education. Employers would be required to think in advance about what reasonable adjustments they could make to remove barriers. Unlike service delivery, employees would be able to challenge potentially discriminatory rules before they had been put into effect. For example, it may well be reasonable for an employer to provide for accessibility for disabled people in the specifications for a new telephone system which he installs. However, the costs of altering the system once in place might make a subsequent adjustment 'unreasonable' under current law. The anticipatory duty would not in itself be enforceable, but could be considered when an individual requires a particular reasonable adjustment. This would help counter systemic discrimination, creating similar management thinking to that fostered by 'indirect discrimination' rules which apply to other grounds such as race and gender (A Framework for Fairness Response (on archived DRC website), p.29-31).

The Government has rejected this proposal. It strongly favours employers factoring disability considerations into all aspects of their business operations, and considers there is already a sound economic incentive for them to do so when, for example, purchasing new communications and information technology systems. However, "the employer/employee relationship differs significantly from the service provider/customer relationship in that employees spend a large part of their lives in their working environment. For this reason, it is much more important that adjustments made for them are tailored to the individual and to the specific demands and structure of the job, in consultation with the employee him/herself... The anticipatory activity ... is not capable of this individual focus. There is a risk that introducing a legal anticipatory requirement could lead employers to spend money on adjustments which turned out to be unsuited to disabled people they subsequently employed. And having spent money on these anticipatory measures, they might have insufficient remaining resources to make adequate individual adjustments." (Source: Government response to the Discrimination Law Review, July 2008, para 11.48-11.50)

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