Equality Bill could 'transform' disability law

With the government considering the implications of recent disability discrimination case law for the forthcoming Equality Bill, consultant editor Darren Newman gives his views on the way forward.

It is becoming increasingly clear that the disability discrimination legislation is in need of a rewrite. In my last perspective article, I discussed London Borough of Lewisham v Malcolm [2008] IRLR 700 HL , in which the House of Lords overturned the leading case of Clark v TDG Ltd t/a Novacold [1999] IRLR 318 and, with it, our understanding of disability-related discrimination.

We now have the European Court of Justice (ECJ) decision in Coleman v Attridge Law and another Case C-303/06. The claimant alleges (nothing has been proved yet) that she was treated badly by her employer because she needed to care for her disabled son. Her case is that the mothers of non-disabled children were given flexible working options and treated with a respect that was denied to her. Accordingly, she brought a claim of disability discrimination and harassment, despite the seemingly insurmountable barrier that the Disability Discrimination Act 1995 protects only individuals who are themselves disabled. The tribunal referred questions to the ECJ to find out whether or not this limitation complies with the Framework Equal Treatment Directive (2000/78/EC).

Back in January 2008, the Advocate General stated that it did not, and that what matters is the "grounds" on which the treatment was meted out to the claimant. The ECJ has now confirmed this approach and ruled that the principle of equal treatment is not limited to people who themselves have a disability. It also ruled that harassment is not limited to disabled claimants, but that the duty to make reasonable adjustments applies solely to disabled people.

Ms Coleman's case now returns to the employment tribunal, which will have to decide whether or not the Disability Discrimination Act 1995 is capable of being interpreted in line with the ruling from the ECJ.

Whatever the outcome, it is clear that the Act will have to be amended to take account of the ECJ's ruling. Disability discrimination needs to allow for discrimination by association, so that less favourable treatment of person A (eg Ms Coleman) on the grounds that person B (eg her son) is disabled is unlawful. The ideal opportunity for that change is the forthcoming Equality Bill, in relation to which the government has just published its response to its 2007 consultation on proposals for the Bill (PDF format, 2.07MB) (on the Equalities Office website). The importance of Coleman is acknowledged in the response, as is the House of Lords decision in Lewisham. However, the government is still considering the implications of these cases and has not yet decided what to do.

For what they are worth, here are my suggestions. The disability discrimination strand should follow the same structure as the other discrimination strands. Now that the House of Lords in Lewisham has rendered it almost meaningless, the concept of less favourable treatment for a disability-related reason should be abolished. Instead, straightforward definitions of direct and indirect discrimination should be used, with an additional positive duty to make reasonable adjustments. The government is already planning to introduce a new standard of justification in disability discrimination cases matching that in relation to indirect discrimination in the other strands. It would make perfect sense if the definitions of discrimination were also aligned.

The next area that needs to be addressed is the meaning of disability itself. The current UK definition is overly technical and its many exceptions are unlikely to stand up to ECJ scrutiny. The government is proposing to simplify the "day-to-day activities" test, but the EAT decision in Paterson v Commissioner of Police of the Metropolis [2007] IRLR 763 also needs to be addressed. The case involved a police officer with very mild dyslexia who was held to be disabled because his condition impeded his career progression. The decision was based, in part, on the ECJ decision in Chacón Navas v Eurest Colectividades SA [2006] IRLR 706, and it is only a matter of time before the issue of the definition of disability crops up again.

I would expect that, a year from now, our law on disability discrimination will have been transformed. The Equality Bill may turn out to be a more exciting piece of legislation than I originally envisaged.