The Equality Bill and people with disabilities

Posted 11th December 2009

Another interesting view on current affairs regarding disabilities by John Armstrong from Benefits Now.

The Equality Bill is currently making its way through Parliament so this seems a good time to consider what it says and how things may be improved for disabled people in the future. It may be argued that the Disability Discrimination Act has made some progress in this area but I don't think anyone would argue with the view that it doesn't go far enough.. The Equality Bill identifies the following "protected characteristics"-

  • age;
  • disability;
  • gender reassignment;
  • marriage and civil partnership;
  • pregnancy and maternity;
  • race;
  • religion or belief;
  • sex;
  • sexual orientation.

A disability is defined as a physical or mental impairment which has a subtantial and long-term adverse effect on a person's ability to carry out normal day-to-day activities. In terms of discrimination, the bill defines direct discrimination as an act that treats a person less favourably than others because of a protected characteristic. The bill also recognises that combined discrimination is possible. This is where a person is treated less favourably because they have more than one protected characteristic (eg an older person who also has a disability). This is interesting because Attendance Allowance (which may shortly be scrapped) treats older people much less favourably than their younger counterparts who get Disability Living Allowance. Indirect discrimination occurs when someone applies to a person criterion or practice which is discriminatory with regard to a protected characteristic.

Section 15 focuses specifically on discrimination arising from disability and states that disability occurs when-

  • a person (A) treats a disabled person (B) in a particular way,
  • because of B's disability, the treatment amounts to a detriment, and
  • A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

This seems reasonably clear although I can imagine many lawyers spending hours arguing over 'detriment' and 'legitimate aim'.

There is also a duty to make adjustments for disabled people. The requirement is for steps to be taken to avoid the disadvantage that would be experienced by a disabled person in comparison with someone who is not disabled. Disadvantages may be caused by policies and procedures, the design or features of a building or the absence of a particular auxillary aid.

Harrassment and victimisation are also covered by the bill, harassment is defined as unwanted conduct related to the protected characteristic which violates the victim's dignity or creates an intimdating, hostile, degrading, humiliating or offensive environment for the victim.

Victimisation occurs if someone is treated badly (to their detriment) because they have brought proceedings or have given evidence or made an allegation under this legislation. Providers of service cannot discriminate because of a protected characteristic, in the case of people with disabilities terms and conditions of contracts can't be changes, services can't be withdrawn just because someone has acquired a disability.

The bill also addresses the issue of employment and makes it clear that employers cannot discriminate by-

  • showing preference to candidates without a protected characteristic,
  • offering different terms of employment,
  • restricting access to opportunities for promotion, transfer or training or any other benefit,
  • dismissing the person on the grounds of their protected characteristic,
  • subjecting the employee to any other detriment,
  • victimising the employee because of a protected characteristic,
  • failing to make reasonable adjustments because of a protected characteristic,
  • harrassing the employee because of a protected characteristic.

This would seem to be fairly comprehensive and will no doubt be helpful to disabled people in the workplace, although there will be many arguments as to what exactly constitues a "reasonable adjustment". The issue of employment is a different matter, proving that someone has been turned down because of their disability is a difficult task. Employers can always argue that an able-bodied candidate did better at interview and was thus appointed even though his or her background and qualifications matched those of the disabled candidate. There is a chapter in the bill which promotes the principle of positive action but does so in a very half-hearted kind of way. Employers are not prohibited from favouring candidates with a protected characteristic over those without but it doesn't require them to do this. It also specifies that positive action can only take place if both candidates are equally qualified. I think we need to contrast this with para h of Article 27 of the UN Convention on the Rights of Persons with Disabilities-

"Promote the employment of persons with disabilities in the private sector through appropriate policies and measures, which may include affirmative action programmes, incentives and other measures;"

I'd far rather the word 'may' was replaced with 'must' but this paragraph is a major improvement on the provisions of the Equality Bill. As I've said before, the only way to get more disabled back into work is to fundamentally change the attitudes and practices of employers. The use of quotas for larger firms together with financial incentives and a framework of comprehensive affirmative action surely stand the best chance of getting disabled back into work and hence reducing the burden on the public purse. Needless to say, the rest of Article 27 is much more clear and direct with regard to the employment of disabled people.

It may also be appropriate to think about the nature of discrimination and how best to combat the causes of discrimination. Prejudice is at the root of all forms of discrimination and prejudice is based on ignorance and fear. Both these components are very present in societal prejudices about disability, we are frightened of disability because it reminds us of our own mortality and our vulnerability to impairment. Most of us who don't have an impairment are shockingly ignorant about what it is like to have a disability. These two factors combine to create both negative attitudes towards disabled people and practices that prevent us from playing a more active role in society. Just as assumptions are made about race (black young men are all violent drug users) so equally offensive assumptions are made about disability (everyone with cerebral palsy has a learning difficulty, everyone with motor neurone disease is as disabled as Stephen Hawking) yet the black community are much more effective in standing up for their rights.

I believe that in order to tackle disability discrimination the government must promote both positive images of disability and embark on an information campaign as to what having a particular condition actually involves. I also believe that people with disabilities should be encouraged to promote and enhance their rightful place in society. Until we start tackling discrimination at source, pieces of weak legislation like this will make very little difference.

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CMSUK Newsletter Issue 4

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