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The Government has published a single Equality Bill for Great Britain. If passed, this will bring disability, sex, race and other grounds of discrimination within one piece of legislation. The proposals for the Bill also include some major changes to disability discrimination law. This web page focuses on these proposed changes. The Bill does not apply to Northern Ireland.
| Main links on Bill and its progress:
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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.
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:
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:
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Employment Services Who is protected Education Disability equality duty 'Transparency' Basic equality statement |
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.)
It would be easier to claim reasonable adjustments from service providers (More on lower threshold for reasonable adjustments).
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...)
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.)
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.)
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'...)
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.)
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.)
There are new rules to discourage employers from asking job applicants disability-related questions. (More on pre-employment enquiries)
Schools and LEAs are to have a duty to provide an auxiliary aid or service where reasonable. (More on new auxiliary aid duty...)
The Equality and Human Rights Commission (EHRC) has published consultation drafts of two Codes of Practice relevant to disability, based on the Equality Bill:
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.
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:
| More on passage of Bill through Parliament: |
Some important changes or clarifications in the House of Lords Committee so far:
Some important changes were made to the Bill at the Report Stage in December 2009, and also at the Committee stage in summer 2009:
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.
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:
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?
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.
The changes contained in the Equality Bill were mostly announced in Summer 2008, following consultation on a Green Paper issued in June 2007.
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 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
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