Equality Bill

Main links on Bill and its progress: Parliament website: text of the Bill, amendments, debates, and up-to-date progress (link to parliament.uk); Government's summary of the proposals (April 2009): A Fairer Future - The Equality Bill and other action to make equality a reality (pdf file, link to equalities.gov.uk) More links below....

The Equality Bill was published in April 2009. It has completed its passage through the House of Commons and is currently in the House of Lords (next Committee day is 9th Feb). Some important changes have been made to the Bill during its passage through Parliament (see below). Royal Assent is expected in Spring 2010. There are already consultations on some draft Codes of Practice and non-statutory guidance.

The Government envisages that most of the Bill will come into force in Autumn 2010, but that some parts will be delayed until Spring 2011 and beyond. This would of course be subject to any changes by the Conservatives if they win the 2010 election.

How does the Bill change the law?

As well as bringing together the different strands of equality law into one piece of legislation, the Bill makes numerous changes to current law. Some of the main changes as regards disability discrimination law are as follows:

Objective justification test

A single objective 'justification' test will replace the different tests currently used. To rely on the justification defence, the employer/service provider etc will have to show that its conduct is a 'proportionate means of achieving a legitimate aim'. The Government says that:

• in employment, this will be a higher threshold than the present test. In other words employers will not find it so easy to justify less favourable treatment (More on new justification test for employment..);
• service providers could potentially use a wider range of circumstances than at present to justify their conduct - but 'proportionality' will be a harder test for service providers to pass compared with the 'reasonable opinion' citerion used at present (More on new justification test for service providers..).

More detail on changes to: Employment Services Who is protected Education Disability equality duty 'Transparency' Basic equality statement

Remedying the Malcolm case

New ways to claim for disability discrimination are to be introduced - 'discrimination arising from disability' and 'indirect discrimination'. These would replace 'disability-related discrimination' which was very severely curtailed by the House of Lords decision in LB Lewisham v Malcolm. (More on New heads of discrimination.)

Reasonable adjustments by service providers

It would be easier to claim reasonable adjustments from service providers (More on lower threshold for reasonable adjustments).

Discrimination by association and perception

Direct discrimination or harassment based on association or perception are to be unlawful. That applies to employment, but also to other areas such as services and education. This proposal implements the European Court decision in Coleman v Attridge Law, but also goes beyond it. (More on discrimination by association and perception...)

Single equality duty

There is to be a single equality duty on public bodies, embracing grounds such as sexual orientation and religious belief as well as race, disability and gender. (More on single equality duty.)

Transparency

The Government wants there to be greater transparency, including an obligation on public authorities to report on their disability employment rate, and a strengthening of the requirement for public bodies to tackle private sector discrimination through public procurement policies (More on transparency.)

Definition of disability

The Government proposes not to broaden the definition of disability as recommended by the Disability Rights Commission, but will remove the list of 'capacities' (More on changes to definition of 'disability'...)

Tribunal recommendations

A tribunal will be able to make a recommendation benefiting the wider workforce, even if it is no longer relevant for the individual claimant - probably because the individual has left the employer. (More on recommendations.)

Multiple discrimination

Claims for discrimination on two combined grounds (but no more than two) are to be allowed - e.g. discrimination for being a disabled woman. (More on multiple discrimination.)

Pre-employment inquiries

There are new rules to discourage employers from asking job applicants disability-related questions. (More on pre-employment enquiries)

Auxialiary aids as reasonable adjustment for schools

Schools and LEAs are to have a duty to provide an auxiliary aid or service where reasonable. (More on new auxiliary aid duty...)

Draft Codes of Practice - consultation

The Equality and Human Rights Commission (EHRC) has published consultation drafts of two Codes of Practice relevant to disability, based on the Equality Bill:

• draft Code of Practice on employment
• draft Code of Practice on services, public functions and associations.

These are on the EHRC website at www.equalityhumanrights.com/legislative-framework/equality-bill/equality-bill-codes-of-practice-consultation/. The consultation closes on 2nd April. Draft Codes of Practice on education and transport have yet to appear, so far as I know.

A key feature of the new draft Codes is that all the discrimination strands (sex, race, disability etc) are covered in the one document, like the Equality Bill itself. There are no longer to be separate Codes of Practice on disability.

Non statutory guidance - consultation

Six pieces of draft guidance have been published for consultation - on employment, services and related areas, and education. The consultation expires on 16th April 2010. The link is www.equalityhumanrights.com/legislative-framework/equality-bill/equality-bill-consultations/

This guidance is 'non-statutory' in the sense that it is not provided for in legislation - unlike the Codes of Practice where legislation authorises the EHRC to issue them and says the courts must take the Codes into account.

List of the draft non-statutory guidance:

• What the Equality Act 2010 means for you as an employer
• What the Equality Act 2010 means for you at work: a guide for employees
• What the Equality Act 2010 means for you in accessing services and public functions or belonging to an association
• What the Equality Act 2010 means for you in providing services and public functions or running an association
• What the Equality Act 2010 means for you as an education provider
• What the Equality Act 2010 means for you in education: a guide for students, pupils and parents.

Passage through Parliament

More on passage of Bill through Parliament: Equality Bill; on UK Parliament website

Lords Committee Stage - January 2010

Some important changes or clarifications in the House of Lords Committee so far:

• Further changes to the new clause to discourage pre-employment enquiries on health.
• Schools and LEAs are to have a duty to provide an auxiliary aid or service where reasonable. (More on new auxiliary aid duty...)
• Another change on education relates to exam boards, and there is to be further discussion on making clear that the reasonable adjustment duty in education is anticipatory.
• A new clause makes clear that a disabled person does not have to contribute to the costs of making a reasonable adjustment. (More on reasonable adjustment costs...)
• There has been a change to the public equality duty to recognise the special needs of disabled people (More on public equality duty change...)
• Further Ministerial clarification that current objective test for direct discrimination remains despite new "because of" wording. (More on Ministerial statements about direct discrimination wording...)

Commons Committee and Report Stages - 2009

Some important changes were made to the Bill at the Report Stage in December 2009, and also at the Committee stage in summer 2009:

• There was a major improvement at Report Stage to the clause on 'Discrimination arising from disability' which aims to reverse the House of Lords decision in the Malcolm case;
• insertion of a new clause on multiple discrimination.

An updated version of the Bill containing the amendments made in the House of Commons (i.e. up to 2nd December 2009), is at www.publications.parliament.uk/pa/ld200910/ldbills/020/2010020.pdf.

Other issues discussed at Committee Stage, sometimes with Ministerial clarifications of what the Bill is intended to mean, included association and perception, insisting on 'proportionate' (rather than 'appropriate and necessary') in the objective justification test, relevance of subjective perceptions in defining harassment, direct discrimination, Tribunal recommendations, representative actions, exclusion of armed services and most volunteers, an equality guarantee/purposes clause, and the public equality duty.

Recommended changes not in the Bill

Various changes to the law have been proposed which are not in the Bill, largely because they are not currently accepted by the Government. Some of these proposals will doubtless be raised as the Bill goes through Parliament.

An important current source of recommendations which in various respects go beyond the Bill is the April 2009 report of the Work and Pensions Committee (House of Commons): The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk).

I will mention just two recommendations (not in the Bill) which seem to me particularly important:

Greater extension of legal definition of 'disability'

The House of Commons Work and Pensions Committee has renewed calls for protection to extend to everyone who has (or has had) an impairment without requiring the effects of that impairment to be substantial or long-term. For more, see: Wider definition of disability?

Equality Tribunals

To address the current difficulties in bringing discrimination claims on provision of services, the Work and Pensions Committee recommended the introduction of Equality Tribunals which would deal with both employment claims and services claims.

External links

The changes contained in the Equality Bill were mostly announced in Summer 2008, following consultation on a Green Paper issued in June 2007.

Govenment proposals

Equality Bill Parliamentary proceedings (link to parliament.uk), including text of Bill with Explanatory Notes, proposed amendments, and links to debates and Committee proceedings;
Equality Bill links: Government Equalities Office website: www.equalities.gov.uk/equality_bill.aspx
Framework for a Fairer Future - The Equality Bill (link to equalities.gov.uk), June 2008
Government response to the Discrimination Law Review (pdf file, link to equalities.gov.uk), July 2008
Original Green Paper (link to communities.gov.uk), dated June 2007.

EHRC, and Work and Pensions Committee

EHRC pages on the Equality Bill (link to EHRC website), including Briefings with the EHRC response to the Bill, and numerous links. There is also an EHRC consultation on Guidance on the Equality Act (deadline 7th June 2009).
Report of Work and Pensions Committee (House of Commons): The Equality Bill: how disability equality fits within a single Equality Act, April 2009.

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Last updated 2nd February, 2010