Proposed changes on services

This page outlines proposed changes relating to the rules on service providers, and also public authority functions. They are largely contained in the Equality Bill. 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 current justification test is to be replaced. The service provider would have to show that his conduct is a 'proportionate means of achieving a legitimate aim'. The new test would also apply to other areas of the DDA such as employment. (Sources: Equality Bill clauses 14 and 18; Government response to the Discrimination Law Review, July 2008, para 11.22-11.28)

Present test

If a service provider can show 'justification', he has a defence to treating a person less favourably. 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 under present law - i.e. effectively a ground for treating a disabled person less favourably - 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.)

Proposed new test

The new 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").

What effect will the new 'justification' test have, compared with the present one? The Government has said that under the new test service providers will potentially have a wider range of circumstances in which they could justify discrimination - because a 'legitimate aim' would no 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 the new 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. (Source: June 2007 Green paper.)

In its July 2008 response to the Discrimination Law Review, the Government acknowledged concerns raised during the consultation that the new test may create uncertainty, and it agrees that guidance will serve an important role. The Govenment also considers that making direct discrimination unjustifiable (below) will address concerns that the new justfication defence will give too much scope for justifying discrimination.

The Equality Bill uses the new defence in clause 14 (discrimination arising from disability) and clause 18 (indirect discrimination). These two clauses are intended to remedy the effect of the House of Lords decision in Malcolm (see Remedying the Malcolm case). The service provider will have no justification defence for direct discrimination.

The Government rejected recommendations to strengthen the test to reflect the wording of European law, to say 'appropriate and necessary' rather than 'proportionate. See Employment: Proposed changes.

My view

The new justification defence may well make it less certain whether a person who stammers has a claim. If the person behind the bank counter refuses to give the customer who stammers the time they need to speak, or someone puts the phone down on you, would they be able to say they would have done the same with anyone who was taking that length of time? So it may not be direct discrimination, and the argument moves to whether or not what they did was a proportionate response to achieving a legitimate aim.

I think it is unfortunate that this rather woolly wording - with a plethora of UK and European cases trying to clarify what it means - is being substituted for the current fairly clear wording which seemed to be doing the job quite adequately. See Services: examples on stammering for the current position. I appreciate though that the proposed new rule fits with the aim of harmonising UK discrimination law.

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.

Reasonable adjustments

Lower threshold for reasonable adjustments

The Government proposes to make it 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 disadvantage. This is the threshold currently used for employment.

(Sources: Equality Bill clause 19 and Schedule 2; Government response to the Discrimination Law Review, July 2008, para 11.31-11.44)

'Substantial' to be defined

What then does 'substantial' mean? It might mean 'very large', or just 'more than minor or trivial'. Codes of Practice on other areas of the DDA where the 'substantial disadvantage' test is currently used for reasonable adjustments say it means 'more than minor or trivial'. However, 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 higher courts.

No justification defence for failure to make reasonable adjustments

This is a further change in the Equality Bill. The Disability Rights Commision (DRC) had recommended it. The justification defence for reasonable adjustments has already been abolished in employment. The DRC pointed out that 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)

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.

Direct discrimination

No justification defence

The justification defence is being abolished for 'direct discrimination'. Currently, direct discrimination is not justifiable in employment and most post-16 education. That approach is now being extended to provision of services and other areas.
(Sources: Equality Bill clause 13; Government response to the Discrimination Law Review, July 2008, para 11.11)

Discrimination by association or perception

The general Equality Bill definition of 'direct discrimination' in Clause 13 will apply. Accordingly it will include direct discrimination because of another person's disability, or because of a perceived disability. In the Coleman case the European Court of Justice decided that discrimination and harassment by association (i.e. where it is someone else who is disabled) must be covered as regards employment. However, the Government has decided to extend this to services as well. For more, see Discrimination because of association, or perceived disability.

Harassment

The Equality Bill contains a freestanding right against harassment by service providers and by public authorities exercising their functions (Equality Bill clause 27). Even under current law though, harassment is likely to be unlawful under provisions against unfavourable treatment.

The general Equality Bill definition of 'harassment' in Clause 24 will apply. Accordingly, as with 'direct discrimination' above, it will include harassment related to another person's disability, and also harassment related to perceived disability. For more, see Discrimination because of association, or perceived disability.

Shift in burden of proof

In the Equality Bill the Government is harmonising the law by providing for the burden of proof in non-employment disability discrimination cases to be transferred to the respondent once a prima facie case has been made. This is a rule which current applies in employment.
(Sources: Equality Bill clause 130; Government response to the Discrimination Law Review, July 2008, para 11.77-11.78)

Relationships which have ended

In the Equality Bill the Government is outlawing discrimination against disabled people in the provision of goods, facilities and services in respect of relationships which have ended, as part of a harmonisation measure across all equality strands;.
(Sources: Equality Bill clause 102; Government response to the Discrimination Law Review, July 2008, para 11.72-11.74)

Equality Tribunals? - inadequacy of County Court route

Government view

The Government is not persuaded by suggestions (see headings below) that cases should go to employment tribunals, called 'Equality Tribunals', rather than county courts. See below on why the DRC believed employment tribunals should be used. (Government response to the Discrimination Law Review, July 2008, para 6.66ff)

In response to the consultation, the Government has decided against its former idea of all non-employment discrimination cases going to certain designated county courts where a small number of judges would have specialised training. Instead there will be greater emphasis on training all judges in discrimination law. Furthermore, judges should normally be assisted by a lay assessor. (Government response to the Discrimination Law Review, July 2008, para 6.78ff).

The original Government proposals are set out in the Green paper consultation document of June 2007, para 7.13 - 7.30.

Work and Pensions Committee report

In April 2009 the House of Commons Work and Pensions Committee recommended that "the Government introduces an equality tribunal with the single Equality Act, empowered to hear all types of discrimination claims, but with the ability to transfer certain types of case - such as housing or actions against the police - to other courts where appropriate" - para 265, The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk).

In comparison with employment cases, very few legal claims on goods facilities and services seem to be brought. The Committee said:

256. A number of submissions highlighted the complexity of the county court rules and cost implications of pursuing claims through county courts, for example the possibility of a claim being listed in the fast or multi-track means that the claimant risks the possibility of considerable costs being awarded if they do not succeed. Ms Casserley of the Discrimination Law Association stressed:

"It is not like employment; you do not fill in a form and send it into the tribunal. You have to apply to a county court, you have to pay money in order to put in your application, then you have to pay more money for them to decide which bit of the county court your case is going to be allocated to. If it is not allocated to what is called the small claims then you risk paying the other side's costs if you lose. For disabled people that is a very significant deterrent in actually bringing those cases. I think there is a very big problem with enforcement."

The Committee says that most submissions advocated an equality tribunal, including the Employers' Forum on Disability and the Federation of Small Businesses.

The Committee also recommends, in para 266, that the Government introduces provision for class/representative actions in goods, facilities and services cases (see on similar suggestions for employment). The Committee believes too that there is a role for the Equality and Human Rights Commission in proactively undertaking formal investigations and bringing strategic cases to improve enforcement - and it should also take a strategic role in monitoring and researching enforcement.

Disability Rights Commission views

Also the former 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 cost a minimum of £210 to commence proceedings, 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, said 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 said that the Government's Green Paper proposals did 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 also argued that potential sanctions against service providers should not only provide redress to the individual but also have a deterrent effect. It said 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)

Alternative dispute resolution

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 asked how ADR could be used more effectively and widely, and its summary and response to the consultation is at para 6.49-6.58 of Government response to the Discrimination Law Review, July 2008.

Also the Equality and Human Rights Commission is to work with Ombudsmen to ensure they are equipped to deal effectively with discrimination complaints they receive, in cooperation with other bodies (Government response to the Discrimination Law Review, July 2008, para 6.60-6.65).

New EU Directive on services?

If it is adopted, a European Directive proposed in July 2008 would probably require some changes to UK law. The UK Government has issued a consultation document on it. More on proposed directive...

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