The Equality Act
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Click here to access the Bill as amended by the House of Lords in Committee 10.02.10..
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The Equality Bill
Overview
The Equality Bill (“the Bill”) as introduced was a major piece of legislation, consisting of 15 Parts containing 207 sections, and 28 schedules. The Bill is divided into two volumes, volume I containing the sections and volume II containing the schedules, and it is accompanied by extensive explanatory notes which need to be read in conjunction with it.
The Bill brings together and re-states all the existing equality legislation, most of which will be repealed, namely:
- The Equal Pay Act 1970;
- The Sex Discrimination Act 1975;
- The Race Relations Act 1976;
- The Disability Discrimination Act 1995;
- The Employment Equality (Religion or Belief) Regulations 2003;
- The Employment Equality (Sexual Orientation) Regulations 2003;
- The Employment Equality (Age) Regulations 2006;
- The Equality Act 2006, Part 2;
- The Equality Act (Sexual Orientation) Regulations 2007.
The key concepts on which the Bill is based are set out in Part 2 and then applied in subsequent Parts of the Bill. These are as follows:
(i) The characteristics which are protected;
(ii) The definitions of discrimination in relation to each protected characteristic.
Part 5 of the Bill contains the provisions which relate to the employment field and which make it unlawful to discriminate against, harass or victimise a person at work.
Protected Characteristics
Part 2 of the Bill starts by listing in section 4 the characteristics which are to be protected (age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation). It then goes on to define each characteristic in turn.
Disability is defined in section 6 as follows:
(1) A person (P) has a disability if:
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
This basic definition is supplemented by Schedule 1and regulations to be made under Schedule 1. It is very similar to the existing definition of disability contained in the DDA 1995.
Disability Discrimination
Disability discrimination is defined in section 24 of the Bill and takes one of four forms:
(a) Direct discrimination because of disability within section 13;
(b) Discrimination arising from disability within section 15;
(c) Indirect discrimination within section 19 where the protected characteristic is disability;
(d) Discrimination arising from a failure to comply with a duty to make reasonable adjustments within section 21.
In addition, sections 25 and 26 of the Bill prohibit harassment and victimisation (which is no longer treated as a form of discrimination).
Direct Discrimination
Section 13 of the Bill provides as follows:
(1) 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.
(2) ......
(3) If the protected characteristic is disability, A does not discriminate against B only because –
(a) A treats a third person who has a disability in a way which is permitted by or under this Act,
(b) B does not have the disability, and
(c) A does not treat B in that way.
The explanatory notes make three points about this definition:
(i) It is broad enough to cover cases where the less favourable treatment is because of the victim’s association with someone who has that characteristic, or because the victim is wrongly thought to have it. This new provision takes account, therefore, of the decision of the ECJ in Coleman Law v Attridge[1][1] in which it was held that the Framework Directive protects people who, although not themselves disabled, nevertheless suffer direct discrimination and/or harassment in employment because they are associated with a disabled person.
(ii) The section uses the words “because of” whereas the existing legislation uses the words “on the ground of”. The notes explain that this change in wording does not change the legal meaning of the definition, but rather is designed to make it more accessible to the ordinary user of the Bill.
(iii) In relation to disability, it is not discrimination to treat a disabled person more favourably than a person who is not disabled. (That is the effect of subsection (3) above).
Discrimination Arising from Disability
Section 15 of the Bill provides as follows:
(1) A person (A) discriminates against a disabled person (B) if-
(a) A treats B in a particular way,
(b) because of B’s disability, the treatment amounts to a detriment, and
(c) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
(2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
(3) It does not matter whether A has complied with a duty to make reasonable adjustments in relation to B.
This is an entirely new provision, which replaces disability-related discrimination and which has been drafted following the judgment of the House of Lords in London Borough of Lewisham v Malcolm which greatly reduced the scope of disability-related discrimination. The explanatory notes state that this section is aimed at re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment.
What is striking about this new provision is the absence of any reference to a comparator. Disability-related discrimination arose in circumstances where, for a reason relating to the disabled person’s disability, the discriminator treated him less favourably than others to whom that reason did not or would not apply. A comparison therefore had to be made and difficulties arose in determining which comparison was intended.
Under this new section, it would appear that no comparison has to be made. Instead, the victim has to show that the treatment in question amounts to a detriment because of his disability. At first blush, that is a perplexing requirement. If a disabled person is dismissed, for example, because he cannot carry out his job, this treatment will amount to a detriment. The treatment does not amount to a detriment because of his disability. It is a detriment in itself. It remains to be seen whether this proposed form of discrimination is enacted as currently drafted. What is intended by sub-section (3), according to the explanatory notes, is that the person who treats the disabled person in the way required by the section may still be liable for discrimination under these provisions, whether or not the duty to make reasonable adjustments has been complied with.
Indirect Discrimination
Section 19 of the Bill provides as follows:
(1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
(2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if –
(a) A applies, or would apply, it to persons with whom B does not share the characteristic,
(b) 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,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate aim.
The relevant protected characteristics are listed in subsection (3) and include disability. As the explanatory notes make clear, indirect discrimination occurs when a policy which applies in the same way for everybody has an effect which particularly disadvantages people with a protected characteristic because they have that characteristic. Where a particular group is disadvantaged in this way, a person in that group is indirectly discriminated against if he or she is put at that disadvantage, unless the person applying the policy can justify it.
This is a new provision. There is no provision specifically outlawing indirect discrimination in the DDA 1995.
Duty to Make Adjustments
The duty to make reasonable adjustments in relation to a disabled person is set out in section 19 of the Bill which provides as follows:
(1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply; and for those purposes, a person on whom the duty is imposed is referred to as A.
(2) The duty comprises the following three requirements.
(3) The first requirement is a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(4) The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(5) The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter 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.
Section 21 of the Bill provides that a failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments which amounts to discrimination. Section 21 of the Bill provides that regulations may be made about a range of issues relating to the reasonable adjustment duty, such as the circumstances in which a particular step will be regarded as reasonable.
Section 23 of the Bill provides that, on a comparison of cases for the purposes of direct and indirect discrimination and for the purposes of the duty to make reasonable adjustments, there must be no material difference between the circumstances relating to each case. Further, if the protected characteristic is disability, the circumstances relating to a case include a person’s abilities.
As noted in the explanatory notes, these provisions replace similar provisions in the DDA 1995. However, some changes are made to provide consistency across the reasonable adjustments provisions. The Bill thus contains only one threshold for the reasonable adjustment duty - “substantial disadvantage” – in place of the two thresholds in the DDA 1995. The explanatory notes go on to observe that the proposed provisions reflect current practice by applying the third requirement explicitly to employment.
Work
The discrimination provisions set out above apply across a range of areas, including the provision of services, premises, work and education. The provisions relating to work are contained in Part 5 of the Bill.
The format of the provisions relating to work is very similar to the existing provisions of the DDA 1995. Thus this part of the Bill starts with two sections making it unlawful for employers to discriminate against, to victimise, and to harass employees and applicants for employment. Similar provisions are then provided for other categories of worker, such as contract workers, police officers, partnerships, barristers and advocates, office holders, qualifications bodies, employment service-providers, trade organisations, and local authority members.
Finally, it should be noted that the provisions contained in section 37 of the Bill relating to employer liability for harassment in the context of disability are more extensive than under the DDA 1995. As explained in the explanatory notes, as well as making it unlawful for an employer to harass employees and people applying for employment, this section makes the employer liable for harassment of its employees by third parties, such as customers or clients, over whom the employer does not have direct control. Liability in relation to third party harassment will however only arise when harassment has occurred on at least two occasions, the employer is aware that it has taken place, and has not taken reasonable steps to prevent it happening again.