Proposed changes on services

This page outlines proposed changes relating to the rules on service providers, and also public authority functions. The proposed changes would not necessarily apply to Northern Ireland.

'Justification'

There are proposals for a new objective 'justification' test. The service provider would have to show that his conduct is a 'proportionate means of achieving a legitimate aim'.

This test has been used for some time as a defence to 'indirect discrimination' related to race or sex. For how the courts apply the test, see the EHRC website ("The legal test for justification in indirect discrimination cases").

If a service provider can show 'justification', he has a defence to treating a person less favourably or failing to make reasonable adjustments. Under present law, the provider normally has to show that "in the opinion of the provider" one of certain conditions is satisfied and that "it is reasonable in the circumstances for the provider to hold that opinion". An example of a condition is where the treatment is necessary for the provider to be able to provide the service at all. (More on current justification test for service providers and public authority functions.)

The Government says that under the new test service providers would potentially have a wider range of circumstances in which they could justify discrimination - because a 'legitimate aim' would not longer need to be one of the specified conditions. However, the need to show 'proportionality' is, says the Government, a considerably stricter test than the subjective ('reasonable opinion') part of the current justification test. So a test of objective justification, while widening the circumstances in which discrimination can be justified, also applies a stricter test of whether the discrimination is in fact justified.

The proposal is subject to consultation and is contained in the 2007 Green paper on proposals for a Single Equality Bill (para 1.46-1.53). The intention is that the different 'justification' tests for disability discrimination would be replaced by this single objective test, applying to employment as well as to service providers etc.

The Disability Rights Commission supports a single objective justification test, but argues 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," says 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'. Also, says the DRC, there should be no justification defence for 'direct discrimination'. (A Framework for Fairness Response (on archived DRC website), p.33-36, 28).

Reasonable adjustments

Lower threshold for reasonable adjustments

The Government proposes it should be easier to claim reasonable adjustments from service providers. It would no longer be necessary to show that the provider's practice etc makes it 'impossible or unreasonably difficult' to access the service (present rules). The test would be whether the practice places the disabled person at a substantial (ie more than minor or trivial) disadvantage. This is the threshold currently used for employment.

The proposal is subject to consultation and is contained in the Green paper on proposals for a Single Equality Bill (para 1.54-1.59). The Disability Rights Commission supports this proposed change (A Framework for Fairness Response (on archived DRC website), p.36-38).

No justification defence for failure to make reasonable adjustments?

The Disability Rights Commision recommends this, but it is not as yet accepted by the Government. The justification defence for reasonable adjustments has already been abolished in employment. Any concerns of the service provider etc are adequately addressed by the fact that only 'reasonable' adjustments are required. Allowing a failure to make a reasonable adjustment to be 'justified' is unfair and unnecessarily complicates the legislation. (A Framework for Fairness Response (on archived DRC website), p.28-29)

Resolving disputes

The Government wishes to encourage use of Alternative Dispute Resolution (ADR) to provide a quicker, cheaper and less stressful means of resolving disputes than the court system. This could include internal complaints and grievance procedures, independent Ombudsmen, or mediation/conciliation arrangements. The Government is asking how ADR could be used more effectively and widely. Note that for disability discrimination there is already a Disability Conciliation Service (www.dcs-gb.org).

When a case does proceed to litigation, the Government is not persuaded by suggestions that cases should go to employment tribunals rather than county courts (see below on why the DRC believes employment tribunals should be used). The Government is considering all non-employment discrimination cases going to certain designated county courts where a small number of judges would have specialised training, and increasing the use of expert assessors in discrimination cases.

The Government says it does not see a good case for creating a mechanism for 'representative actions', where a body such as an equality commission or trade union would be able to bring a claim on behalf of a group of individuals. It is concerned about the danger of a 'litigation culture'.

For more on the Government proposals, see the Green paper consultation document on proposals for a Single Equality Bill (para 7.13 - 7.30).

Disability Rights Commission views on dispute resolution

The DRC, in its A Framework for Fairness Response (on archived DRC website) (pages 7-11) believed that the current process for legally challenging discrimination in services denies access to justice. County Courts are expensive for individuals - eg it costs a minimum of £210 to commence proceedings at the moment, with additional charges at every stage. Also there is the disincentive that if one loses, one is required to pay the legal costs of the winner in many cases (particularly where cases are allocated away from the small claims court).

All discrimination cases (except pre-16 education) should, says the DRC, be commenced in employment tribunals, which do not have the same disadvantages and where procedures are considerably less complex. The tribunals would be designated 'equality tribunals' where the matter does not relate to employment.

The DRC says that the Green Paper proposals do not address the issue of access to justice. Only a handful of people actually take service providers to court at the moment under the DDA. The DRC supports Ombudsmen, but argues that the extension of Ombudsmen to sectors such as pubs, shops and businesses about which the DRC receive complaints is not likely to be feasible (p.67).

The DRC also argues that potential sanctions against service providers should not only provide redress to the individual but also have a deterrent effect. It says that for most services cases the payment is on average about £1000 for injury to feelings. This does not give sufficient incentive to service providers where compliance with the DDA may involve significant expense - eg some physical adjustments. (p.11-12)

Change to transport exemption?

The Disability Rights Commision has recommended that the transport exemption, which applies particularly to planes and ships, should be ended or at least simplified (A Framework for Fairness Response (on DRC website), p 38-41). This recommendation is not as yet accepted by the Government.

Direct discrimination?

The Disability Rights Commision recommended that direct discrimination outside the employment area should be a stand-alone unlawful act (A Framework for Fairness Response (on DRC website), p.28). At present direct discrimination, for which there is no justification defence, is only prohibited in relation to employment and vocational training, including much post-16 education. This recommendation is not as yet accepted by the Government.

Harrassment

The Government is consulting on whether express rules against harassment should be extended to service providers - though harassment is likely to be unlawful already under provisions against unfavourable treatment (Green paper, Chapter 14).

The Disability Rights Commission supports the express extension of harassment rules to service providers (A Framework for Fairness Response (on DRC website), pages 72-73).

New EU Directive on services?

If it is adopted, a European Directive proposed in July 2008 would probably require further changes to UK law. More on proposed directive...

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