The Equality Bill: part one

The long-awaited Equality Bill received its second reading in the House of Commons on 11 May 2009. If enacted, the Bill will transform equality legislation in Great Britain (it does not cover Northern Ireland). In the first in a series of articles, we examine the background to the Bill and look in detail at how its provisions will affect the key issue of disability discrimination in the field of employment. 

On this page:
Background to the Bill
Protected characteristics
New provisions
Timetable
Disability discrimination and the Equality Bill
Definition of disability
Direct disability discrimination
Discrimination arising from disability
Indirect disability discrimination
Duty to make reasonable adjustments
Positive action
Conclusion

Background to the Bill

The 2005 Labour Party manifesto promised to "introduce a Single Equality Act to modernise and simplify equality legislation". As well as seeking to consolidate existing legislation, its aim was to introduce a number of reforms, and in particular to address the gender pay gap. In June 2007, the Discrimination Law Review was published outlining the Government's proposals. However, it took almost two years for this to be translated into a Bill.

In part, the delay reflects the political controversy that surrounds some of the proposals, particularly the duties placed on public authorities to promote equality. However, there is no avoiding the fact that the Bill is a mammoth undertaking. Running to 205 clauses and 28 schedules, it has been published in two volumes covering more than 250 pages. As well as dealing with discrimination at work, the Bill covers the provision of goods and services, the management of premises, education and the functions of public bodies. In this article, we deal with the Bill only as it affects employment.

Protected characteristics

Rather than being made up of separate parts dedicated to particular strands of discrimination, the Bill sets out nine "protected characteristics" to which it refers throughout. The protected characteristics are:

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

All of these characteristics are covered by current discrimination legislation. Gender reassignment, marriage and civil partnership, and pregnancy and maternity are covered by the Sex Discrimination Act 1975. There are no additional grounds of discrimination included in the Bill.

Having listed the protected characteristics, the Bill deals with discrimination based on "a protected characteristic", rather than referring to the individual grounds. This does not mean that all grounds of discrimination are now dealt with in the same way. In several areas, the Bill provides particular exceptions or requirements that relate to a specific characteristic. On the whole, however, the Bill reduces the differences between the strands of discrimination and provides a more consistent approach to discrimination, harassment and victimisation.

New provisions

Most of the Bill essentially recasts the existing law and is clearly not intended to introduce any substantive change. However, whether or not any change has been introduced will ultimately be a matter for the courts to decide. For example, the definition of direct discrimination in clause 13 is less favourable treatment "because of" a protected characteristic rather than "on the grounds of" a characteristic, as found in the current legislation. Is this merely a different way of expressing the same concept, or does it introduce a difference in meaning? If the phrase remains in the Bill we can expect that the issue will at some stage be the subject of some highly esoteric arguments in the courts.

Leaving aside mere differences in wording, the Bill makes a number of substantive changes in the law, including the following:

• Discrimination "by association" is extended to all grounds of discrimination (clause 13). Thus, for example, it will be unlawful to discriminate against an individual because his or her partner is a particular age or has a disability.
• Indirect discrimination is extended to include disability and gender reassignment, although not pregnancy and maternity (clause 18).
• The differences in the Race Relations Act 1976 between discrimination based on nationality and colour and discrimination on other racial grounds are removed.
• The rules on third-party harassment in the Sex Discrimination Act 1975 are extended to harassment based on any of the protected characteristics (clause 37).
• A new provision seeks to make a contractual term preventing employees from discussing their pay with others unenforceable when they are discussing whether or not their pay is discriminatory (clause 72).
• Provision is made for regulations requiring employers with at least 250 employees to publish information relating to the differences in pay between male and female employees (clause 73).
• The Bill replaces the current public sector duties to promote equality in relation to race, disability and gender with a single equality duty relating to all of the protected characteristics except marriage and civil partnership (clause 143).
• A new provision requires public authorities to exercise their functions with due regard to the desirability of reducing "the inequalities of outcome which result from socio-economic disadvantage" (clause 1).

In addition to these major changes, there are many minor changes, usually aimed at harmonising the rules relating to particular characteristics.

Timetable

The Bill has a long way to go before becoming law. The Government envisages that it will receive Royal Assent in spring 2010, with a view to it being brought into force in autumn that year. This means that there will be a general election before the Bill is brought into force. This casts some doubt about whether some of the more controversial aspects of the Bill will ever come into force. However, the Conservative opposition, while voting against the Bill at a second reading in the Commons, have expressed support for much of the substance of the Bill.

Disability discrimination and the Equality Bill

One of the areas of discrimination law most affected by the Bill is disability. The main reason that the law on disability discrimination is to be changed so extensively is that two key cases in the past year have left the current legislation in some difficulty.

First, the European Court of Justice (ECJ) ruled in Coleman v Attridge Law and another [2008] IRLR 722 ECJ that the rules on direct discrimination and harassment had to be wide enough to allow a claimant to allege discrimination on the basis that he or she is associated with a disabled person. Second, the House of Lords in London Borough of Lewisham v Malcolm [2008] IRLR 700 HL overruled the long-standing judgment of the Court of Appeal in Clark v TDG Ltd t/a Novacold [1999] IRLR 318 CA dealing with the issue of disability-related discrimination. This effectively rendered the disability-related discrimination provisions simply another form of direct discrimination, which was widely regarded as unsatisfactory. The Bill seeks to rectify the law in each of these areas, as well as making other more modest reforms.

Definition of disability

The Bill retains the bulk of the Disability Discrimination Act 1995 definition of disability (clause 6 and sch.1). However, one aspect of the definition that has changed relates to normal day-to-day activities.

Under sch.1 to the Disability Discrimination Act 1995, an impairment is treated as affecting day-to-day activities only if it affects the individual in respect of one of a number of matters such as mobility, manual dexterity and the ability to move everyday objects. This list has been dropped from the new definition of disability. The aim is to remove a technical barrier to claiming disability discrimination, and make it easier for those with an impairment to argue that it affects their normal day-to-day activities without having to bring their circumstances within a defined list.

The Bill does not otherwise alter the definition of disability. However, what is found in the Bill is not the whole story. Schedule 1 makes provision for regulations dealing with particular conditions that should or should not be regarded as amounting to a disability. The current Regulations - the Disability Discrimination (Meaning of Disability) Regulations 1996 (SI 1996/1455) - contain important provisions specifying, for example, that: an addiction to alcohol is not to be treated as a disability; tattoos or decorative piercings should not be regarded as a disfigurement; and a number of personality disorders, such as a tendency to abuse others physically or sexually, are not disabilities. Similar legislation will be enacted should the Bill become law.

Direct disability discrimination

Clause 13 of the Bill defines direct discrimination in relation to each of the "protected characteristics" including disability. Clause 13(1) provides that direct discrimination occurs when: "A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others."

The importance of this definition in the context of disability discrimination is that it is wide enough to cover situations in which B is not disabled, but is less favourably treated because of someone else's disability. For example, if A were to take exception to the fact that B's child had a disability, and treated B less favourably as a result, this would amount to direct discrimination.

The provision therefore implements the requirements of the ECJ in Coleman that direct discrimination should encompass discrimination by association. It is also possible that the Bill goes further than this. Suppose that an employer incorrectly assumes that an individual has a disability and treats him or her less favourably as a result. Could this be seen as less favourable treatment because of a protected characteristic, or must it be shown that either the claimant or someone associated with the claimant actually has a disability? This is an important point and likely to be the subject of litigation if the Bill is enacted.

Direct discrimination requires a comparison between the treatment of the claimant and that of his or her comparator (whether actual or hypothetical). In choosing the appropriate comparator, there must be no material difference between the circumstances relating to each case (clause 22). Clause 22(2) replicates the requirements of the Disability Discrimination Act 1995 in providing that, in cases of direct disability discrimination, the circumstances relating to a case include a person's abilities.

Therefore, where the claimant is disabled, direct discrimination will be shown only where he or she is treated less favourably, because of disability, than someone who has the same abilities as the claimant. For example, if A refuses to employ B because B is deaf and cannot use an unadjusted telephone, this will be direct discrimination only if A would have been prepared to employ a non-deaf person who was also unable to use a telephone.

Direct discrimination is therefore a limited right dealing only with situations where it is the disability itself, rather than the consequences of it, that lead to the less favourable treatment. If A objected to employing deaf employees on principle, rather than because of the impact that their disability had on their abilities, this would be direct discrimination.

In practice, such situations are likely to be less common than what has hitherto been referred to as disability-related discrimination. It was this area of discrimination with which the House of Lords was dealing in Lewisham, and which the Bill seeks to address in a new provision: "discrimination arising from disability".

Discrimination arising from disability

Clause 14 of the Bill is aimed, as the explanatory notes put it, at "re-establishing an appropriate balance" between protecting a disabled person from a detriment that arises from his or her disability and the employer's ability to defend the treatment meted out to the disabled person.

Clause 14(1) provides three elements to this new form of discrimination, these being:

• A treats 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.

Clause 14(2) provides that there is no discrimination if A can show that he or she did not know, and could not reasonably have been expected to know, that B had the disability. This reflects the conclusion of the House of Lords in Lewisham that knowledge of the disability is an essential prerequisite for any discrimination.

While clause 14(2) is clear enough, it is not at all clear that the clause as a whole will actually achieve its stated intention. The provision that it is replacing (s.3A(1) of the Disability Discrimination Act 1995) requires a link between the claimant's disability and the treatment that he or she received. However, clause 14 is not concerned with the reason for the treatment, but rather with the reason why the treatment amounts to a detriment. To be discrimination, the treatment must amount to a detriment because of B's disability. Treatment that is inherently detrimental cannot therefore amount to discrimination under this clause. For example, if B were dismissed as a result of absence caused by a disability-related illness, that would not fit under clause 14. Dismissal would be a detriment whether or not B was disabled, so it cannot be said that the treatment amounts to a detriment "because of B's disability".

The problem may lie with what amounts to "treatment" within the meaning of the clause. The explanatory notes give the example of an employee who is dismissed because he performs less work than a non-disabled colleague because the employer's computer system is not compatible with the assistive software that the employee has to use. It could be argued that the treatment here is the requirement to use the employer's system. That would not be a detriment to most employees, but could cause the employee a detriment because of his disability.

However, such an approach is tortuous and does not fit easily with the words of the clause. It would seem much more likely that the treatment complained of would be the dismissal, in which case clause 14 would not be satisfied. At the very least, it must be said that clause 14 does not seem either to simplify or to clarify the current law, and it may need to be revisited as the Bill makes parliamentary progress.

Indirect disability discrimination

In the event, the need for a provision such as that attempted in clause 14 is substantially addressed by bringing disability within the scope of indirect discrimination. There is no provision for indirect discrimination in the Disability Discrimination Act 1995, but clause 18 of the Bill, which essentially replicates the definition of indirect discrimination in the other strands of the current discrimination legislation, covers disability.

A provision, criterion or practice is indirectly discriminatory in relation to a relevant characteristic of person B where:

• A applies, or would apply, it to persons with whom B does not share the characteristic;
• it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it;
• it puts, or would put, B at that disadvantage; and
• A cannot show that it is a proportionate means of achieving a legitimate aim.

People who share B's characteristic are those with the same disability as B rather than disabled people in general (clause 6(3)). Therefore, if the employer required an employee to use a telephone, and B was profoundly deaf, B would need to show only that the requirement caused a particular disadvantage to other profoundly deaf people rather than to disabled people as a whole.

The concept of indirect discrimination applied to disability may be wide enough on its own to cover most of the situations encompassed by the law under Novacold. For example, dismissing someone for disability-related absence could be seen as applying a provision, criterion or practice that the employee should attend work. That puts people who suffer from a particular condition at a disadvantage compared with people who do not, so the issue moves to whether or not the provision, criterion or practice is a proportionate means of achieving a legitimate aim.

This is a higher standard of justification than currently exists with regard to disability-related discrimination. It may make it more difficult for an employer to justify taking action in relation to an employee whose disability affects performance or attendance, or limits what he or she is able to do.

Duty to make reasonable adjustments

The duty to make reasonable adjustments is found in clauses 19 to 21 and sch.8 to the Bill and is imposed on an employer by clause 36(5). On the face of it, the essence of the duty remains unchanged from that under the Disability Discrimination Act 1995, although the structure of the duty is changed considerably and consists of three separate requirements:

• Where there is a provision, criterion or practice that puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
• Where a physical feature of the employer's premises puts a disabled person at a substantial disadvantage in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
• Where the disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.

The second requirement applies during employment but does not apply in relation to the recruitment process (para.2(4) of sch.8).

The Disability Discrimination Act 1995 definition of the duty does not include a specific reference to the provision of an auxiliary aid, although it would undoubtedly be wide enough to cover, for example, the provision of a Braille reader for a computer. Clause 19(8) makes it clear that an auxiliary aid includes the provision of an auxiliary service, which could extend to the provision of a sign language interpreter at a disciplinary meeting.

Clause 21 provides a regulation-making power to give detail on when it is reasonable for an adjustment to be made, and to provide exceptions to the duty to make reasonable adjustments. However, the Bill does not appear to have an equivalent of s.18B of the Disability Discrimination Act 1995, which sets out a list of examples of reasonable adjustments, and identifies a number of issues to which regard should be had in determining whether or not the employer has complied with the duty. These issues include specific reference to the cost of making the adjustment and the extent of the financial resources available to the employer. It is not clear why this important provision has not been included in the Bill.

Positive action

Another area of uncertainty is the extent to which employers can take action in favour of someone who has a disability. Under the Disability Discrimination Act 1995, this is straightforward, as there is no provision allowing individuals to argue that they have been discriminated against because they do not have a disability.

However, clause 13 makes it unlawful to discriminate against anyone because of a protected characteristic. If an employer therefore took the decision to recruit a disabled person because he or she was disabled, this would amount to direct discrimination against a non-disabled person.

The explanatory notes to the Bill state that clause 13 provides that "it is not discrimination to treat a disabled person more favourably than a person who is not disabled". However, it is difficult to reconcile the explanatory notes with the wording of the Bill. Clause 13(3) provides that, where the protected characteristic is disability, it is not discrimination for a disabled person to be treated more favourably than a non-disabled person "in a way which is permitted by or under this Act".

It is difficult to see this as rendering all positive action lawful. To come within the exception, the treatment has to be permitted by the Bill. That must mean that the sub-clause is aimed at treatment such as a reasonable adjustment. In complying with the requirement to make a reasonable adjustment, an employer is doing something favourable towards a disabled person. Clause 13(3) says that this will not be unlawful because the employer's action is permitted by the Bill.

However, if the employer - without being under a duty to do so - sought to guarantee an interview to disabled job applicants who met minimum selection criteria, but did not give a similar guarantee to non-disabled job applicants, this would not be covered by clause 13(3), because the treatment is not otherwise permitted under the Act.

Therefore, it would seem that, apart from the duty to make reasonable adjustments, positive action will be permitted only if it meets the requirements of clauses 152 or 153, which apply to positive action in relation to all the protected characteristics. We will deal with the detail of these provisions in a future article, but it is worth noting at this stage that positive action in relation to recruitment or promotion is lawful only where the person receiving more favourable treatment is "as qualified as" the person who loses out in being recruited or promoted. Guaranteed interviews under the "two ticks" scheme operated by Jobcentre Plus do not meet this requirement, as an interview may be granted to a disabled person and not given to a better-qualified non-disabled person. It is doubtful that the Government intends such a result, so this too may be an area that is revisited as the Bill progresses through Parliament.

Conclusion

There are a number of areas in relation to disability discrimination where the Equality Bill is unclear or where the Government's view of the Bill in the explanatory notes is difficult to reconcile with the wording of the Bill itself. As the main aim of the Bill is to simplify and clarify the law, this is unfortunate. There is, of course, ample opportunity for further debate and amendment as the Bill makes progress, but time is short. Bearing in mind the number of amendments that may need to be made both in relation to disability discrimination and in relation to the other areas of the Bill, it may not be possible for the process to be completed before the next general election.