Vous êtes sur la page 1sur 25

Industrial Law Journal, Vol. 40, No. 4, December 2011 Industrial Law Society; all rights reserved.

. For permissions, please e-mail: journals.permissions@oup.com. doi:10.1093/indlaw/dwr021

Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost and Generated
ANNA LAWSON*

ABSTRACT This article critically evaluates employment-related changes made by the Equality Act 2010 from a disability perspective. It identifies opportunities to enhance disability equality which were seized as well as those which were missed. Where relevant, these are held up for scrutiny through the lens of the United Nations Convention on the Rights of Persons with Disabilities, by which the UK is now bound. Two respects in which the Equality Act may fall short of that Conventions demands are identified. In addition, the article draws attention to equality measures in the Act which are specific to disability. It is suggested that, by including these measures and highlighting their disability-specific application, the Act has generated fresh opportunities to open debate about whether such measures should be extended to other protected characteristics.

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

1. INTRODUCTION
Through the Equality Act 2010 (EqA), the Labour Government aimed to standardise existing definitions and concepts . . . unless there [was] an overriding reason not to.1 Predictably, incorporating disability into this new harmonised framework presented particular challenges. Many arose from structural differences between the pre-existing legislation governing disability discrimination (the Disability Discrimination Act 1995 (DDA)) and that governing other forms of discrimination (eg, the Sex Discrimination Act 1975 and the Race Relations Act 1976 (RRA)). Prominent amongst these differences were the absence from the DDA of indirect discrimination, the presence within it of a reasonable adjustment duty and of what was generally known as disability-related discrimination2
*University of Leeds, email: a.m.m.lawson@leeds.ac.uk. 1 Government Equalities Office, The Equality Bill: Government Response to the Consultation (London: Stationery Office, 2008) para 7.3. 2 See, eg, the use of this term in Disability Rights Commission, DDA 1995 Code of Practice: Employment and Occupation (London: Stationery Office, 2004).

359

Industrial Law Journal

Volume 40

and the asymmetrical nature of its protection.3 In the words of Mummery LJ:
. . . Important features of the 1995 Act have no equivalent in sex discrimination and race discrimination law.4

The extent to which, if at all, disability requires different approaches to those required by other protected characteristics is a question which inevitably loomed large in the pre-EqA discussion. It is also a question which necessarily shapes any disability-orientated evaluation of the EqA. Also essential to any such evaluation is reference to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol,5 to both of which the UK is a party. The CRPD sets out the internationally agreed benchmarks towards which the UK has committed itself to work and against which it has agreed to be judged. In relation to employment discrimination, these supranational standards largely reflect those already established by European Union (EU) law.6 Nevertheless, the CRPD adds valuable breadth and context. A fuller account of the CRPD is set out in Sarah Fraser Butlins contribution to this issue (see below) but the analysis of the relationship between the EqA and the CRPD provided in that article differs, in significant respects, from that provided here. This article provides a critique of the EqAs treatment of disability in the employment context. Accordingly, important changes made in nonemployment areas (such as housing7 and education8) lie beyond its scope. In the next section, employment-related aspects of the EqA which are disability-specific will be examined. A key element of the inquiry here will be whether different treatment of disability was needed. After that, attention will turn to a discussion of the impact on, and implications for, disability of selected employment-related aspects of the Act which apply to protected characteristics more generally.
An asymmetrical approach was also applied to gender reassignment and marital status. Aylott v Stockton and Tees BC [2010] EWCA Civ 910, [1] (Mummery LJ). See also similar observations made by Mummery LJ in Clark v Novacold [1999] IRLR 318, [29][34]. 5 See generally O. Arnadttir and G. Quinn (eds), The UN Convention on the Rights of Persons with Disabilities: European and Scandinavian Perspectives (Leiden: Martinus Nijhoff, 2009). 6 See, in particular, Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, [2000] OJ L303/16. 7 Where changes prevent landlords from refusing consent unreasonably to physical alterations to common partssee EqA, ss 368 and Sched 4. 8 Where changes impose a reasonable adjustment duty on schools to provide disabled pupils with auxiliary aids and servicessee EqA, s 85(6) and Sched 13.
4 3

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

360

December 2011

Disability and Employment in the EqA

Despite the fact that the CRPD uses the phrase persons with disabilities, the term disabled people will be used in this article except where direct quotations or sensitivity to context require otherwise. This latter phrase, which is criticised by Fraser Butlin,9 is favoured and used by proponents of the social model of disability, particularly in the UK.10 This model conceptualises disability as a socially created phenomenon, using the term impairment to refer to the functional limitations of an individual and the term disability to refer to the disadvantage or exclusion experienced by such a person because of societal barriers. It thus focuses on the way in which people with impairments (not disabilities) are disabled by society.

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

2. DISABILITY-SPECIFIC MEASURES A. The Definition of Disability


The EqA preserves the DDA approach to the role and the content of the definition of disability. Its role is that of gatekeeper. It grants access to the full protection of disability discrimination law only to those people it classifies as being or having been disabled. A more limited form of protection is afforded to those who are treated less favourably or harassed because they are perceived to be disabled or associated with a disabled person. The asymmetrical nature of disability discrimination law, staked out by the definition of disability, has the advantage of facilitating more favourable treatment of disabled people. It enables preferential treatment to be given to a disabled person without the risk of equipping a non-disabled rival with the material for a successful direct discrimination claim.11 However, it also presents significant difficulties for potential claimants. One such difficulty is the discomfort associated with having the details of ones impairment and its limiting effects publicly scrutinised. This process, which also operates under analogous provisions in the US Americans with Disabilities Act 1990, has proved so gruelling and personally invasive that it
See S. Fraser Butlin, The UN Convention on the Rights of Persons with Disabilities: Does the Equality Act 2010 Measure up to UK International Commitments? (2011) 40 ILJ 428, 4356 (in this issue, below). 10 See further M. Oliver, Understanding Disability: From Theory to Practice (Basingstoke: Macmillan, 1996) and the sources cited by Fraser Butlin in support of the social model, ibid. at 428438. 11 Except in local authorities, where such preferential treatment is prohibited by s 7 of the Local Government and Housing Act 1989.
9

361

Industrial Law Journal

Volume 40

has been likened to the cross-examination of rape victims.12 Unsurprisingly perhaps, evidence suggests that defendants often deliberately choose to challenge the disabled status of a claimant as a strategy for intimidating and pressurising them into settling or withdrawing the case.13 An associated difficulty is that the disability definition requirement risks distracting judicial and other attention from the behaviour of the alleged discriminator and focusing it instead on the functional limitations of the victim. The gravity of this risk is demonstrated by the estimate that almost a fifth of all DDA tribunal cases fail because of the disability definition.14 While respectful scrutiny of an individuals disability status might be expected to be the focus of proceedings concerning entitlement to welfare benefits, the focus of discrimination proceedings should instead be the conduct of the alleged discriminator. Indeed, it has been suggested (by a US commentator) that a tendency to regard reasonable adjustments as a form of welfare benefit or handout often lies at the root of restrictive judicial interpretations of the disability definition.15 Reasonable adjustment, however, is not a form of compensation or subsidy but a tool for requiring employers and others to remove particular disadvantages which their provisions, criteria, practices and premises would otherwise cause to the particular disabled person. Concerns such as these resulted in some widening of the definition of disability through amendments of the DDA in 2005. They also led to calls for further widening of the definition through the removal of the need for an impairment to be long term or to have a substantial effect.16 These calls were,
12 R. L. Burgdorf, Substantially Limited Protection from Disability Discrimination: The Special Treatment Model and Misconstructions of the Definition of Disability (1997) 42 Villanova Law Review 409, 561. See also, for the argument that legal definitions of disability may themselves perpetuate and entrench social division and ablism, F. Kumari Campbell, Legislating Disability: Negative Ontologies and the Government of Legal Identities in S. Tremain (ed), Foucault and the Government of Disability (Ann Arbor, MI: University of Michigan Press, 2005). 13 J. Hurstfield et al, Monitoring the Disability Discrimination Act 1995: Phase 3 (London: DRC, 2004) 121. See also N. Meager and J. Hurstfield, Legislating for Equality: Evaluating the Disability Discrimination Act 1995 in A. Roulstone and C. Barnes (eds), Working Futures? Disabled People, Policy and Social Inclusion (Bristol: The Policy Press, 2005) 834. 14 N. Meagre et al, Monitoring the Disability Discrimination Act 1995 (London: Department for Education and Employment, 1999) 126. For criticism of the DDA definition, see also C. Woodhams and S. Corby, Defining Disability in Theory and Practice: A Critique of the British Disability Discrimination Act 1995 (2003) 32 Journal of Social Policy 1; C. Pearson and N. Watson, Tackling Disability Discrimination in the United Kingdom: The British Disability Discrimination Act (2007) 23 Washington University Journal of Law and Policy 95. 15 M. Diller, Judicial Backlash, the ADA & the Civil Rights Model (2000) 21 Berkeley Journal of Employment & Labor 19 especially at 4850.

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

362

December 2011

Disability and Employment in the EqA

however, largely unheeded in the drafting of the EqA where the disability definition survives substantially unchanged.17 It is particularly disappointing that the requirement for an impairment to have any effect on normal day-to-day activities (let alone an effect which is substantial and long term) has been retained. Examples of statutory definitions of disability which have no such requirement are to be found in Ireland18 and in Australia.19 Further, the DDA has never required a substantial adverse effect in cases of severe disfigurement20 nor, since 2005, in cases where there has been a diagnosis of human immunodeficiency virus (HIV) infection, cancer or multiple sclerosis.21 Removing this requirement for all cases would have made disability discrimination claims available to people treated less favourably because of impairments with only very minor effects on their daily lives or because of an impairment which might affect them in the future (due, for instance, to a genetic predisposition22). Such a change would have channelled attention onto the behaviour of defendants and away from the particularities of claimants bodily functions and sent out a clear message that [n]on-discrimination is a guarantee of equality and not a special service reserved for a select few.23 The CRPD contains no definition of disability. However, Article 1 (the purpose clause) states that:
persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

This baseline appears to be set at a higher level than the EqAs requirement that an impairment has a substantial and long-term effect. Article 1 uses the word may, thereby suggesting that an actual hindrance of participation in society is not essential. In addition, it recognises that any
See in particular Disability Rights Commission, Consultation on Definition of Disability in Anti-Discrimination Law (London: DRC, 2006); and House of Commons Work and Pensions Committee, The Equality Bill: How Disability Equality Fits Within a Single Equality Act (London: Stationery Office, 2009) paras 845. 17 See further S. Fraser Butlin?? 18 Irish Employment Equality Act 1998, s 2(1). 19 Australian Disability Discrimination Act 1992, s 4. 20 See now EqA, Sched 1, 3. 21 See now EqA, Sched 1, 6. 22 For criticism of the omission of this issue from the EqA, see R. H. Wilkinson, The Single Equality Bill: A Missed Opportunity to Legislate on Genetic Discrimination? (2009) 3 Studies in Ethics, Law, and Technology, available at: http://www.bepress.com/selt/vol3/iss1/art3/ (date last accessed 18 October 2011). 23 Substantially Limited Protection, above n.12, 568.
16

363

Industrial Law Journal

Volume 40

such hindrance might result from the impairment in interaction with social barriers whereas the EqA insists that it results entirely from the impairment and, in so doing, anchors itself firmly in the medical or individual model of disability. Removing the need to demonstrate that an impairment has an effect on ones ability to perform ordinary activities would release the EqA from these unhelpful moorings and allow attention to focus instead on the social dimension of the exclusion and disadvantage. In failing to tackle the definition of disability head-on, the EqA missed an important opportunity to reform disability equality law and free it from its current medical and welfarist shackles.

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

B. Discrimination Arising from Disability


Despite initial governmental reluctance,24 a specific form of discrimination designed to replace the DDA notion of disability-related discrimination is included in the EqA. Disability-related discrimination consisted of unjustified less favourable treatment for a reason related to the disabled persons disability.25 For many years, the comparator requirement of disability-related discrimination was interpreted leniently, in accordance with guidance in Clark v Novacold Ltd.26 This simply required the claimant to establish that they had been treated less favourably than a non-disabled person to whom the disability-related reason for the treatment did not apply. Thus, a disabled person who was dismissed for taking time off work because of disability would be compared with a non-disabled person to whom that reason did not apply and who accordingly would not have needed to take time off work. The leniency of the comparator requirement meant that the focus of disability-related discrimination claims was generally on whether the justification defence could be established. In the housing case of Lewisham LBC v Malcolm,27 however, Novacold was overturned and the comparator requirement interpreted with the same degree of strictness as it is in direct discrimination cases. Thus, less favourable treatment could be established only if it could be shown that
24 Office for Disability Issues, Consultation on Improving Protection from Disability Discrimination (London: Stationery Office, 2008). 25 See, eg, DDA, s 3A. 26 (1999) 2 All ER 977. 27 [2008] UKHL 43.

364

December 2011

Disability and Employment in the EqA

the claimant had been treated less favourably than a similarly situated nondisabled personie, to return to the example above, a non-disabled person who had taken the same amount of time off work. This approach reduced disability-related discrimination to a form of justifiable direct discrimination and effectively dealt its deathblow.28 Section 15 of the EqA introduces discrimination arising from disability which resurrect[s] Novacold and nullifie[s] Malcolm.29 The comparator requirement is abandoned completely by the use of the phrase unfavourable treatment instead of less favourable treatment. Unlike direct discrimination, however, it requires the unfavourable treatment to have been because of the claimants own disabilitythus ruling out the possibility of claims based on association or perception. In addition, and again unlike direct discrimination, discrimination arising from disability is subject to a general justification defence. Section 15 brings the justification defence for discrimination arising from disability into line with the justification defence for indirect discrimination. It is thus for the defendant to show that the unfavourable treatment is a proportionate means of achieving a legitimate aim. This represents a significant improvement of the law on disability-related discrimination for which there were three different versions of the justification defence applicable in different parts of the DDA. The two forms of defence with the widest reachthose applicable to employment and to goods and services were both problematic and subject to heavy criticism.30 The EqAs approach to justification undoubtedly achieves welcome simplicity and harmonisation. Fraser Butlin (in this volume) argues that the justification defences for discrimination arising from disability and indirect discrimination are inconsistent with the CRPD. This argument, however, appears to rest on an unsupportable interpretation of the CRPD. Apart from its explicit
See R (on the application of N) v London Borough of Barking and Dagenham Independent Appeal Panel [2009] EWCA Civ 108 and Aylott v Stockton on Tees BC [2010] 910 for rulings that the Lewisham approach extended to education and employment respectively. See also the more recent case of JP Morgan v Chweidan [2011] EWCA Civ 648. For a more detailed analysis of Lewisham and its implications, see A. Lawson, Disability and Equality Law in Britain: The Role of Reasonable Adjustment (Oxford: Hart Publishing, 2008) ch 4. 29 Aylott v Stockton on Tees BC, ibid., [69] (Mummery LJ). 30 See, eg, on the employment test, J. Davies, A Cuckoo in the Nest: A Range of Reasonable Responses, Justification and the Disability Discrimination Act 1995 (2003) 32 ILJ 164 and OHanlon v Commissioners of Inland Revenue and Customs [2007] EWCA Civ 283 [98] (Sedley LJ); and, on the goods and services test, A. Lawson, Selling, Letting and Managing Premises: New Rights for Disabled People? (2000) 64 Conveyancer and Property Lawyer 128.
28

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

365

Industrial Law Journal

Volume 40

recognition of reasonable accommodation as a form of discrimination, the definition of discrimination in Article 2 of the CRPD is similar to that in earlier United Nation human rights treaties. Although justification is not expressly mentioned, general comments by both the Human Rights Committee31 and the Committee on Economic Social and Cultural Rights32 have expressly acknowledged that certain forms of treatment may be discriminatory only if they cannot be justified. There is no evidence to suggest that a different approach was intended in relation to the CRPD. As mentioned above, the Government was initially unconvinced of the need to resurrect disability-related discrimination. Although highly critical of the Malcolm decision,33 the Governments initial view was that what had previously been addressed through disability-related discrimination (and could not be addressed through direct discrimination), could instead be dealt with through a combination of reasonable adjustment and indirect discrimination.34 This view, however, was energetically challenged. The Discrimination Law Association, for instance, drew attention to situations where unfavourable treatment was not linked to a failure to make a reasonable adjustment but where proving indirect discrimination might prove impossible because of difficulties in identifying a provision, criterion or practice; in identifying a group similarly affected by the challenged measure or in proving disadvantage because of potentially restrictive interpretations of the relevant comparator group.35 The Government was persuaded by these arguments and discrimination arising from disability thus appears in the EqA as a disability-specific form of discrimination. The reason for it, and the disruption it causes to the harmonisation exercise, is the need to ensure that the standard of protection available before the EqA (or rather before Lewisham v Malcolm36) is not lowered. Its existence does beg the question of whether a similar form of protection could usefully be extended to other grounds. The Labour Government reported that, prior to the EqA, there was no significant

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

General Comment 18, Non-Discrimination (37th Session, 10 November 1989) para 13. General Comment 20, Non-Discrimination in Economic Social and Cultural Rights (42nd Session, 422 May 2009) para 13. 33 Consultation on Improving Protection, above n.24, 19. 34 Ibid. 35 Discrimination Law Association, Response to the Consultation Improving Disability Discrimination (London: DLA, 2009). See also the evidence presented to and discussed by The Equality Bill, above n.16, paras 2834. 36 [2008] UKHL 43.
32

31

366

December 2011

Disability and Employment in the EqA

appetite for the removal of the comparator requirement from direct discrimination.37 However, it did not consult on introducing an additional form of discrimination, to run alongside the familiar comparator-based form of direct discrimination, which would be based on unfavourable treatment and accompanied by a justification defence. Nevertheless, during its passage through Parliament, the EqA was amended to permit claims for pregnancy and maternity discrimination to be based on unfavourable rather than less favourable treatment.38 The EqAs failure to introduce the notion of discrimination arising from religion and belief has been identified as a missed opportunity by Bob Hepple, who argues that it would have avoided the need to make hair-splitting distinctions between direct and indirect discrimination.39 The extension of such a form of discrimination to all protected characteristics might provide a useful means through which to tackle disadvantage without having to negotiate the perils of a comparator requirement.40

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

C. The Reasonable Adjustment Duty


Duties to make reasonable adjustments appeared in UK law for the first time in the DDA, preceding the Employment Equality Directive41 requirement to introduce such duties in the employment context and the CRPD requirement to impose them more broadly.42 The DDA contained separate provisions on reasonable adjustment in each of its different parts. The EqA, however, sets out the core of the duty in sections 2022. These sections are supplemented by additional context-specific detail in the EqAs voluminous schedules. Section 21 makes it clear that a failure to comply with a reasonable adjustment duty (as set out in section 20 and the applicable schedule) will constitute unlawful discrimination. Section 22 confers a regulationThe Equality Bill: Government Response, above n.1, paras 7.47.10. EqA, ss 17 and 18. 39 B. Hepple, Equality: The New Legal Framework (Oxford: Hart Publishing, 2011) 43. 40 For criticism of systems which place heavy reliance on the comparator, see A. McColgan, Cracking the Comparator Problem: Discrimination, Equal Treatment and the Role of Comparisons (2006) 6 EHRLR 650. 41 Directive 2000/78/EC, above n.6, Art 5. 42 CRPD, Art 5. See, for a discussion of the implications of this obligation in the European context, A. Lawson, Reasonable Accommodation and Accessibility Obligations: Towards a More Unified European Approach? (2011) 11 European Anti-Discrimination Law Review 11.
38 37

367

Industrial Law Journal

Volume 40

making power and section 20 sets out the content of the duty. Of particular significance are the three requirements set out in section 20(3), (4) and (5). These are to remove a substantial disadvantage to which a disabled person would otherwise be exposed by, first, altering provisions, criteria or practices; second, altering, removing or circumventing physical features43 and, third, providing auxiliary aids.44 Section 20(6) provides that where the substantial disadvantage under the first or third requirement concerns the provision of information, it will be reasonable to take steps to ensure that the information is provided in an accessible format. The EqA has the effect of tidying up and harmonising the previous reasonable adjustment duties. However, most of the changes were made in non-employment contexts and the effect is to bring them into line with the DDA approach to the employment reasonable adjustment duties. Thus, the justification defence for a failure to make a reasonable adjustment (which previously existed in non-employment areas) is removed. The trigger for the duty of substantial disadvantage (which previously applied in the employment context) is now applied across the board. Substantial is defined as meaning more than minor or trivial45 and therefore seems to set the level of required disadvantage at a relatively low level.46 Accordingly, Schedule 8 of the EqA, which concerns reasonable adjustment in employment, sets out a scheme which is in substance very similar to that which applied under the DDA. In particular, the duty retains its entirely reactive or responsive nature. It is a duty to remove the substantial disadvantage faced by an interested disabled person47 (who is a particular individual standing in one of a range of specified relationships with the employer, eg, employee or applicant). The duty does not arise unless the employer knows, or ought to know, that the person in question is disabled and exposed to the relevant substantial disadvantage.48

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

Further guidance on the extent and nature of this requirement is provided in s 20(9) and (10). A term which, according to s 20(11), includes auxiliary services. 45 EqA, s 212(1). 46 It is therefore suggested that Fraser Butlins argument (see this volume, below, at p. 437) that this requirement is inconsistent with the CRPD is likely to succeed only if substantial is interpreted by the courts more strictly than s 212 would appear to warrant. 47 Sched 8, s 2(2)(c). 48 Sched 8, s 20.
44

43

368

December 2011

Disability and Employment in the EqA

The fact that the EqA employment reasonable adjustment duty is reactive is entirely consistent with the Employment Equality Directive and the CRPD. Reasonable accommodation, in both these instruments, is defined as being a duty to respond to the disadvantage experienced by a particular individual and to take account of the particular circumstances of the specific case and the specific person. Such sensitivity to the particular individual and their circumstances is an essential mechanism for ensuring that a countless range of barriers can be removed, on a case-by-case basis, for individuals with a vast range of different impairments, working methods, backgrounds and skills. However, in non-employment areas (other than premises) reasonable adjustment duties under the EqA (as under the DDA) are anticipatory in nature.49 These anticipatory duties have a much greater potential to drive systemic change than does the reactive employment duty. It is disappointing that they have not been extended to the employment sphere. However, as will be discussed below, the extension of indirect discrimination to disability may compensate to some extent for this omission. Disability remains the only protected characteristic in respect of which a reasonable adjustment duty operatesa limitation which is also to be found at the level of EU and international law. There have been calls for a more expansive approach which would extend such duties to religion50 or to other characteristics more generally.51 There was, however, surprisingly little discussion of such a possibility in the lead up to the EqA. Such a discussion might have been helpful in identifying whether disadvantages often associated with other protected characteristics require the flexibility of response of a reasonable adjustment duty or can be more effectively tackled through specific schemes (such as those applying to flexible working and parental leave).

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

D. Pre-Employment Health Checks


Section 60 of the EqA introduces a new prohibition which, subject to certain exceptions,52 prevents employers asking applicants about their health before
See generally, Disability and Equality Law, above n.28. B. Hepple, M. Coussey and T. Choudhury, Equality: A New Framework (Oxford: Hart Publishing, 2000) recommendation 21, paras 2.772.82. See also Equality, above n.39, 43. 51 T. Degener, Intersections between Disability, Race and Gender in Discrimination Law in D. Schiek and A. Lawson (eds), EU Non-Discrimination Law and Intersectionality: Investigating the Triangle of Racial, Gender and Disability Discrimination (London: Ashgate, 2011). 52 EqA, s 60(6).
50 49

369

Industrial Law Journal

Volume 40

deciding whether to employ them. While health is wider than disability, it clearly includes disability and claimants in disability discrimination proceedings may refer to the fact that an employer has asked a prohibited question and relied upon the information elicited.53 The Equality and Human Rights Commission (EHRC) is also able to take proceedings against an employer who has asked prohibited questions, regardless of whether there was any reliance on the information elicited.54 The extent of the exceptions is clearly of critical importance to the scope and effect of section 60. They cover questions which are necessary in order to establish whether there is a need to make adjustments to the interview or assessment process, to carry out positive action schemes in favour of disabled people and to determine whether a person has a particular impairment when having that impairment is an essential requirement of the job. Exceptions also cover questions necessary for diversity monitoring and, importantly, for establishing whether the applicant will be able (with the benefit of reasonable adjustments) to carry out a function which is intrinsic to the work. This last exception is likely to be heavily relied on by employers unwilling to abandon pre-employment health checks.55 Section 60, recommendations for which date back to 1999,56 has been described as undoubtedly the most important new provision for disabled people.57 Its rationale is the disproportionate disadvantage caused by pre-employment health checks to disabled applicants and the difficulty of challenging rejections made at this early stage of the recruitment process. Nothing in section 60 prevents employers from requiring health checks after employment offers have been made.58 However, Liz Sayce (the Executive Director of the Royal Association for Disability Rights) has urged employers to abandon universal pre- and post-employment health check policies, arguing that they are expensive and tend to create an unproductive

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

EqA, s 60(3), (4) and (5). EqA, s 60(2). 55 Guidance on it is provided in EHRC, Equality Act 2010 Code of Practice: Employment (London: EHRC, 2011) para 1.368. 56 Disability Rights Task Force, From Exclusion to Inclusion (London: Department for Education and Employment, 1999), recommendations 5.32 and 5.33. 57 C. Casserley and C. Gooding, Disability (July 2010) 40 Discrimination Law Association Briefings, Briefing 563. 58 For an example of a case in which the withdrawal of a job offer based on recommendations from an occupational health assessor was successfully challenged as disability discrimination, see Paul v National Probation Service [2004] IRLR 190.
54

53

370

December 2011

Disability and Employment in the EqA

environment of defensiveness and secrecy about health and disability issues.59 She suggests that employers might focus instead on requesting information as part of a process of assessing employee adjustment or support needs. Section 60 is an interesting addition to our equality law. It identifies a widely used practice which frequently operates disproportionately to the disadvantage of people with one of the protected characteristics. Instead of leaving this practice to be challenged through actions for indirect or other discrimination, however, it lays down a blanket prohibition against that practice and carves out specified exceptions. It gives the EHRC power to police adherence without the need to identify specific victims. The effectiveness of section 60 will be heavily dependent on judicial interpretation of the functions intrinsic to the job exception and on the vigilance of the EHRC in its policing role. Nevertheless, it marks a new and innovative approach to the promotion of equality60 and it will be interesting to see whether its lead is followed by the enactment of other provisions dealing with other types of practice (eg, rules preventing the wearing of head gear).

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

3. THE DISABILITY DIMENSION OF GENERIC MEASURES A. Direct Discrimination


Direct discrimination is now governed by section 13 EqA and applies to all protected characteristics. It was introduced into the DDA only in 2004 as a result of the Employment Equality Directive.61 It was then confined to employment, occupation and post-16 education but now applies throughout the EqA. Its application to disability has presented a number of challenges. First, the frequently troublesome question of identifying the appropriate comparator has raised particular difficulties in the disability context. Under the DDA, the treatment of the disabled person had to be compared with the treatment of a person not having that particular disability whose relevant circumstances, including his abilities, [were] the same as, or not materially different from, those of the disabled person.62 Importantly, and unlike
L. Sayce, Employment Health Checks: Time for a Rethink (July 2010) 40 Discrimination Law Association Briefings, Briefing 564. 60 It is, however, not new on the world stage, similar provisions appearing in s 102(c) of the US Americans with Disabilities Act 1990, 42 USC 12. 61 DDA (Amendment) Regulations 2003. 62 DDA, s 3A(5).
59

371

Industrial Law Journal

Volume 40

the US approach where reliance is placed on the notion of a qualified individual with a disability,63 there was no need to assess the abilities of a disabled person as they would have been with the benefit of any necessary reasonable adjustments. The difficulty of establishing less favourable treatment on this basis is illustrated by High Quality Lifestyles v Watts,64 in which the claimant was HIV+. The appropriate comparator was held to be a hypothetical person who had the same abilities, skills and experience as the claimant and also some condition, other than HIV, which carried the same risk of transmission. Unsurprisingly, it could not be demonstrated that Mr Watts had been treated less favourably than such a comparator and his claim for direct discrimination therefore failed. A more generous approach to the construction of a hypothetical comparator appeared to be adopted by the Court of Appeal in Aylott v Stockton on Tees.65 The first instance decision to construct a hypothetical comparator who had taken time off work because of a broken bone (rather than because of a mental illness such as that of the claimant) but not to factor into the comparator circumstances linked to the claimants disability, such as difficult relationships with colleagues, was upheld by their Lordships.66 This appeared to open up the possibility of impairment-related behaviour being treated as part of the disability and therefore being withdrawn from the range of circumstances to be attributed to the comparator. Such an approach has attracted criticism.67 It appears inconsistent with the approach adopted to direct discrimination because of religion and belief, where courts have generally distinguished the relevant belief from the behaviour through which it is manifested. It also risks making it possible for people with very challenging forms of behaviour to establish less favourable treatment in direct discrimination claims where there is only a very limited form of justification defence. Interestingly, in Aitken v Commissioner of Police of the Metropolis,68 however, the Court of Appeal seemed to adopt a more cautious approach. Aylott was distinguished on the grounds that, in Aitken, the relevant circumstances took the form of behaviour which had been observed by others whereas, in Aylott, they took the form of difficult relationships with
63 64

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

Americans with Disabilities Act 1990 42 USC s 12,101(8). [2006] IRLR 850. 65 [2010] EWCA Civ 910. 66 Ibid., [45][46] (Mummery LJ). 67 D. Newman, Direct Discrimination, Religion and Disability (2011) 211 EOR 17. 68 [2011] EWCA Civ 582 [60].

372

December 2011

Disability and Employment in the EqA

colleagues which were inseparable from his colleagues stereotypes about mental illness. This distinction may prove difficult to apply in future cases. The EqAs approach to the direct discrimination comparator is the same as that of the DDA.69 It therefore provides no easy answers to the difficulties discussed above. However, the existence of discrimination arising from disability, with its general justification defence, may well provide a useful alternative to claimants and therefore encourage judges to maintain their retreat from Aylott and adopt a strict approach to the construction of the direct discrimination comparator. The second aspect of direct discrimination which has particular relevance to disability is its potential to found claims for discrimination by association. The European Court of Justice in Coleman v Attridge Law70 ruled that the DDAs restriction of direct discrimination and harassment claims to people who were themselves disabled was inconsistent with the Employment Equality Directive. This resulted in the reading of words into the DDA to allow people, such as Sharon Coleman (the mother and principal carer of a disabled child), to bring direct discrimination claims if they could demonstrate that they had been treated less favourably because of the disability of another person. Section 13 of the EqA avoids these difficulties by simply prohibiting less favourable treatment because of a protected characteristic. It thus provides a clear basis for direct discrimination claims brought by people (such as carers or relatives) who are not themselves disabled but who are treated less favourably because of their association with somebody who is. It should be stressed, however, that the EqA does not extend the reasonable adjustment duty to anybody who is not themselves disabled. The third of the aspects of direct discrimination that will be addressed here is very closely linked to the second. It concerns claims brought by people who are not actually disabled but who have been less favourably treated because of a mistaken belief that they are disableddiscrimination by perception. Again, this type of claim was inconsistent with the DDAs restriction of coverage to people who were themselves disabled. Even after Coleman, this type of claim was highly problematic for the DDA.71 While section 13 undoubtedly now permits such claims in theory, they are likely to raise some difficult questions in the disability context. These arise
69 70

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

EqA, s 23 and, in particular, s 23(2). Case C-303/06, Coleman v Attridge Law [2008] ECR 1-5603; [2008] IRLR 722. 71 J v DLA Piper [2010] UKEAT 0263_09_1506.

373

Industrial Law Journal

Volume 40

largely from the detail and complexity of the EqAs definition of disability. Scrutinising an employers mistaken perception of the claimant to ascertain whether it meets all the requirements of that statutory definition is an exercise which would be both difficult and undesirable. It would require examination of whether the employer (who would be keen to deny anything that might attract liability) perceived the claimant to have a physical or mental impairment which had a substantial and long-term effect on their ability to carry out normal day-to-day activities. In the words of Underhill P72:
What the putative discriminator perceives will not always be clearly identifiable as disability. If the perceived disability is, say, blindness, there may be no problem: a blind person is necessarily disabled. But many physical or mental conditions which may attract adverse treatment do not necessarily amount to disabilities, either because they are not necessarily sufficiently serious or because they are not necessarily long-term. If a manager discriminates against an employee because he believes her to have a broken leg, or because he believes her to be depressed, the question whether the effects of the perceived injury, or of the perceived depression, are likely to last more or less than twelve months may never enter his thinking, consciously or unconsciously (nor indeed, in the case of perceived depression, may it be clear what he understands by the term). In such a case, on what basis can he be said to be discriminating on the ground of the employeesperceiveddisability?

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

These difficulties will almost certainly reach the courts in the near future.73 Claimants (even those who are clearly disabled) will undoubtedly be tempted to base their case on discrimination by perception if there is a chance that a less invasive approach to the disability definition will be adopted in this context. Focusing on the perception of the employer might avoid the intrusive examination of functional abilities which has become routine in disability cases. Discrimination by perception thus has the potential to circumvent, at least in direct discrimination cases, the hazards of the definitional gateway through which claimants have previously had to pass. Ironically, however, the strictness of the direct discrimination comparator requirement is likely to render any such circumvention of use to very few claimants. In conclusion, given the predictability of the questions posed by direct discrimination by perception of disability, it is a pity that guidance on it was not provided either by the EqA or by the code of practice. The possibility
Ibid., at [62]. Attempts to raise it in connection with the DDA have already been made in J v DLA Piper, ibid., and also in Aitken v Commissioner of the Police of the Metropolis [2011] EWCA Civ 582.
73 72

374

December 2011

Disability and Employment in the EqA

of discrimination by perception of disability also exists under the US Americans with Disabilities Act.74 In tackling the emerging problems in the UK, useful lessons might therefore be learned and guidance derived from an analysis of relevant US experience.75

B. Indirect Discrimination
Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

Section 19 of the EqA introduces indirect discrimination, for the first time (in the UK), into the realms of disability. Prior to this, the UK relied on the proviso in Article 2(2)(b)(ii) of the Employment Equality Directive to justify the absence of indirect disability discrimination from domestic law.76 The wording of this proviso, however, is at best ambiguous and there was concern that the demands of the Directive had not been met.77 Indirect discrimination, while providing a remedy to individual litigants, has potential to address systemic barriers and institutional discrimination in that it requires potential defendants to scrutinise the possible disproportionate impact of their provisions, criteria and practices on members of relevant groups. In this sense, it is group-oriented.78 The reactive reasonable adjustment duty which operates in the context of employment, by contrast, is primarily individual-oriented as its focus is removing the disadvantage experienced by one particular individual. So too are the concepts of direct discrimination and disability-related discrimination. Thus, before the EqA, the DDAs employment provisions did not recognise the group dimension of disability discrimination. The only mechanism that could be used to require employers to identify and avoid or remove institutional barriers against disabled people was the disability equality dutya duty which, although highly significant, did not found
Americans with Disabilities Act 1990 42 USC 12 s 3(2)(c). See, eg, A. B. Mayerson, Restoring Regard for the Regarded As Prong: Giving Effect to Congressional Intent (1997) 42 Villanova Law Review 587. 76 The Draft DDA (Amendment) Regulations 2003Explanatory Notes and Supplementary Questions, para 19; Consultation on Improving Protection, above n.24, para 25. 77 See, eg, K. Wells, The Impact of the Framework Employment Directive on UK Disability Discrimination Law (2003) 32 ILJ 253 at 271; and K. Monaghan, Blackstones Guide to the Disability Discrimination Legislation (Oxford: Oxford University Press, 2005) s 5.2.2. 78 For an interesting discussion of the tensions between the individual and group dimensions of indirect discrimination and its consequent conceptual hybrid status, see D. Schiek, Indirect Discrimination in D. Schiek, L. Waddington and M. Bell (eds), Cases, Materials and Texts on National, Supranational and International Non-Discrimination Law (Oxford: Hart Publishing, 2007) especially at 332.
75 74

375

Industrial Law Journal

Volume 40

discrimination actions and applied only to the public sector. This individual orientation of the pre-EqA law on disability discrimination in employment represented a failure to attach sufficient weight to the way in which people with impairments as a group are marginalised and disabled by general societal barriers and attitudesa failure which, as the following words of Lord Brown demonstrate, is shared by some members of the judiciary:79
Disabilities are too diverse in their nature for the concept to lend itself easily to the notion of indirect discrimination . . . What indirect discrimination against the disabled would equate to, say, a requirement for employees to be at least six feet tallpresumably indirectly discriminatory against both women (sex) and those of Asian origins (race)? The needs of the disabled are rather different . . .
Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

The drafters of the EqA are to be congratulated for resisting such views and introducing indirect discrimination into disability employment equality law. Given its group dimension, indirect discrimination is better placed than reactive reasonable adjustment to challenge and break down systemic barriers.80 In addition, its extension to the arena of disability employment law carries the important symbolic message that disability discrimination is not an entirely individualised affair but one that demands scrutiny of general policies and organisational structures and practices. Attention has been drawn in other jurisdictions to the importance of exploiting the potential of indirect discrimination or disparate impact provisions as well as to the fact that they often appear to be little used.81 A number of Australian cases, however, provide interesting examples of successful indirect disability discrimination cases.82

Lewisham v Malcolm [2008] UKHL 43, [114]. See, for recognition of the different potentials of these two forms of discrimination in this regard, L. Waddington and A. Hendriks, The Expanding Concept of Employment and Discrimination in Europe: From Direct and Indirect Discrimination to Reasonable Accommodation Discrimination (2002) 8 International Journal of Comparative Labour Law and Industrial Relations 403, 415; Impact of the Framework, above n.77, 2712; and R. Whittle, Rights Perspective (2002) 27 European Law Review 303, 310. 81 See, eg, on the US, M. A. Stein and M. E. Waterstone, Disability, Disparate Impact and Class Actions (2006) 56 Duke Law Journal 861; and, on Ireland, O. Smith, A Pandisability Analysis? The Possibilities and Pitfalls of Indirect Disability Discrimination (2009) 60 NILQ 361. 82 See, eg, Waters v Public Transport Corporation [1991] HCA 94, where the replacement of tram conductors by a scratch-card ticketing system was successfully challenged; Maguire v Sydney Organising Committee for the Olympic Games (2001) Equal Opportunity Cases 93123 and 124, where the failure of the Organising Committee to ensure that its website was accessible to blind people was successfully challenged; and Hurst and Devlin v Education Queensland [2006] FCAFC 100, where the use in schools of English Sign Language (rather than Australian Sign Language) was successfully challenged.
80

79

376

December 2011

Disability and Employment in the EqA

In the UK, indirect disability discrimination is new and as yet untested. However, the closely related concept of anticipatory reasonable adjustment existed in non-employment areas (other than housing) under the DDA and continues to do so under the EqA.83 This concept has been used to good effect in challenging disabling barriers. In the three Court of Appeal cases to which it has given rise, claimants have succeeded in challenging the physical inaccessibility of a train station84 and a bank85, and the lack of adequate assistance in an airport.86 Any discussion of the future of indirect disability discrimination in the UK demands that attention be given to the workings of this anticipatory reasonable adjustment duty and its relationship with indirect discrimination. The anticipatory reasonable adjustment duties are defined by reference to section 20 and its three reasonable adjustment requirements. Service providers (a term used here to refer to all those to whom the anticipatory duty applies) are required on an on-going basis to monitor their services or functions and to anticipate any potential disadvantage which might be caused to disabled people by their provisions criteria or practices, by their physical features or by their auxiliary aid or service provision. If any such disadvantage could be anticipated, service-providers are required to take such steps as are reasonable to remove it even if no disabled person has yet actually been disadvantaged. The duty, however, can be enforced only by a disabled individual who has been substantially disadvantaged as a result of non-compliance with the duty. These duties also have a reactive dimension (which falls outside the scope of the present discussion) in that, where service providers have become aware that a particular disabled person is experiencing a disadvantage in accessing their services, they will be required to take reasonable steps to remove that disadvantage.87 Thus, like indirect discrimination, the anticipatory reasonable adjustment duty contains an element of group disadvantage. Despite fears, such as those of Lord Brown quoted above, the identification of a relevant group appears to have presented little difficulty in this context. Admittedly, however, no case has yet concerned an impairment resulting in particularly unusual or unforeseeable effects.
See further EHRC, Equality Act 2010 Code of Practice: Services, Public Functions and Associations (London: EHRC, 2011), ch 7; and Disability and Equality Law, above n.28. 84 Roads v Central Trains [2004] EWCA Civ 1540. 85 Allen v Royal Bank of Scotland [2009] EWCA Civ 1213 86 Ross v Ryanair and Stansted Airport [2004] EWCA Civ 1751. 87 Equality Act 2010 Code of Practice, above n.83, para 7.26.
83

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

377

Industrial Law Journal

Volume 40

Useful guidance on the group disadvantage element of anticipatory reasonable adjustment was provided by Sedley LJ in Roads v Central Trains.88 He stressed that it is not necessary to show that all or most disabled persons would have been disadvantaged. Evidence that there would have been any significant impact on, say, wheelchair users as a class would suffice. This approach reflects that envisaged by the EqA for indirect disability discrimination.89 For indirect discrimination, however, there is a requirement that members of the group have the same disability as the claimant. There is no such explicit requirement in the anticipatory duty, the emphasis of which is instead on anticipation of types of disadvantage. It is as yet unclear whether this difference will prove significant. Sedley LJ also warned that reliance on statistical evidence when establishing group disadvantage may prove invidious or arbitrary, and recommended that judges should instead rely on their own appraisal of the situation with the help of expert evidence where appropriate.90 It is to be hoped that this robust approach is also applied in indirect discrimination cases and that judges are able to appraise situations in such a way as to gain the respect of the broad disability community. One potentially important difference between indirect disability discrimination and reasonable adjustment (both reactive and anticipatory) is that indirect discrimination can be used to challenge only discriminatory provisions, criteria or practices. Reasonable adjustment duties generally go beyond this to require action, in addition, where a disadvantage is caused by a physical feature or by the absence of an auxiliary aid.91 This suggests that, in the employment context (where no anticipatory reasonable adjustment duty exists), disabled claimants would need to fall back on the reactive reasonable adjustment claim to challenge disadvantage created by physical features or the lack of auxiliary aids. It would thus withdraw physical access and auxiliary aid provision from the ranks of issues which indirect discrimination requires employers to scrutinise for possible group disadvantage. It is a pity that provision was not made, as it has been by relevant federal legislation in Austria,92 for instance, for indirect discrimination claims to be grounded

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

88 89

[2004] EWCA Civ 1540 [26]. See s 6(3). 90 Roads v Central Trains [2004] EWCA Civ 1540 [26]. 91 EqA, s 20(4) and (5). 92 Disability Equality Act 2005, s 5.

378

December 2011

Disability and Employment in the EqA

on disadvantage arising from physical and design features as well as from provisions, criteria and practices. It will be interesting to observe how indirect disability discrimination and anticipatory reasonable adjustment develop. There is certainly scope for tremendous overlap between them in those areas of the EqA in which they both operate.93 Indeed, the value of introducing indirect discrimination into these areas of the EqA is somewhat questionable. The addition of indirect discrimination to the employment provisions, where there is no anticipatory reasonable adjustment duty, is however to be welcomed. It injects a degree of recognition of the group dimension of disability discrimination. Further, extending indirect discrimination to disability creates more consistency between disability and other protected characteristics. Nevertheless, the decision to retain the anticipatory reasonable adjustment duty in other parts of the Act but not to extend it to employment is puzzling. Indeed, disabled employees and applicants might have been better served by such an extension of the anticipatory reasonable adjustment duty than by the introduction of indirect discrimination.

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

C. Public Sector Equality Duty


The final generic measure to be considered here is the public sector equality duty introduced by section 149 of the EqA. In this section, however, it is not the implications of the general duty that will be considered but the implications of the specific duties which accompany it. The DDAs general disability equality duty was supplemented by specific duties which required public sector bodies to draw up and publish disability equality schemes.94 Unlike the specific duties applying to race and gender, there was also a requirement that disability equality schemes should be drawn up with the involvement of disabled people who had an interest in the organisations performance of its functions. Securing meaningful involvement is a process which takes time and care.95 Useful guidance on implementing the involvement requirement of

A point recognised in Equality Act 2010 Code of Practice, above n.83, paras 5.375.40. Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005. 95 For an interesting discussion of the difficulties that have been encountered elsewhere, see T. Mladenov, Institutional Woes of Participation: Bulgarian Disabled Peoples Organisations and Policy-Making (2009) 24 Disability & Society 33.
94

93

379

Industrial Law Journal

Volume 40

the specific duty was issued by the Disability Rights Commission.96 Unlike consultation, involvement requires collaboration on an on-going basis. It may also require an element of capacity building and the investment of effort and resources to ensure the participation of people often excluded or silenced. Recognition of its importance is, however, at the very heart of the international and European disability movements which have united behind the slogan of nothing about us without us.97 The specific disability equality dutys involvement requirement was widely recognised to be an important and potentially radical step in the promotion of equality and citizenship for disabled people.98 Its implementation was patchy and inconsistent but evidence was emerging of good (as well as bad) practice and of its transformative potential.99 There were calls for implementation efforts to be increased by the intensification of regulatory activity by the EHRC.100 The former specific equality duty, however, is to be replaced in England by duties which the Coalition Government claim will free public sector organisations from the unnecessary burdens of bureaucratic process.101 The implications of these changes are explored more fully by Sandra Fredman elsewhere in this volume. For present purposes, however, it should be noted that there will be no obligation to draw up general equality schemes and that no involvement or even consultation obligation accompanies the duty to identify equality objectives. The abandonment of the involvement requirement, together with other aspects of the proposed change, has been greeted with dismay by campaigners for disability equality.102 The dismissal of the involvement requirement as
96 Disability Rights Commission, Doing the Duty: An Overview of the Disability Equality DutyStatutory Code of Practice for England and Wales (London: DRC, 2005). 97 For a thought-provoking account of the tactics and challenges of the international disability movement in the process leading to the CRPD, see S. Tromel, A Personal Perspective on the Drafting History of the United Nations Convention on the Rights of Persons with Disabilities in G. Quinn and L. Waddington (eds), European Yearbook of Disability Law (Antwerp: Intersentia, 2009) 115. 98 C. Pearson et al, Dont Get Involved: An Examination of How Public Sector Organisations in England Are Involving Disabled People in the Disability Equality Duty (2011) 26 Disability and Society 255, 266. 99 Ibid. 100 Ibid. 101 The EqA (Specific Duties) Regulations 2011, laid before Parliament on 27 June 2011; and accompanying Written Ministerial Statement, 28 June 2011 by Lynne Featherstone and Baroness Verma of Leicester. 102 C. Gooding, Will the New Equality Duty Deliver Progress for Disabled People? (keynote presentation delivered at the Lancaster Disability Studies Conference, September 2010).

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

380

December 2011

Disability and Employment in the EqA

mere unnecessary bureaucracy takes insufficient account of the importance of process in shaping outcome. The importance of process and involvement is enshrined in the CRPD, which was itself the product of a process built on involvement and collaboration. Article 4(3) of that convention requires that:
3. In the development and implementation of legislation and policies to implement the present Convention, and in other decision-making processes concerning issues relating to persons with disabilities, States Parties shall closely consult with and actively involve persons with disabilities, including children with disabilities, through their representative organizations.

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

It is at least arguable that the changes being made to the specific duties represent a giant step backward from this obligation.

4. CONCLUSIONS
The EqA has changed the landscape of equality law in Britain. As regards disability, it has introduced many much-needed changes, of a fairly minor nature, which inject a greater degree of consistency and simplicity into the law. Examples of this type of change are those concerning the trigger for the reasonable adjustment duty and the justification defence for discrimination arising from disability. These changes represent opportunities usefully seized. Other opportunities to improve disability equality law which the EqA has seized concern changes of a more substantive nature. These include the introduction of discrimination arising from disability, which essentially restores the law to its pre-Lewisham v Malcolm103 state, the introduction of a general prohibition of pre-employment health checks, the introduction of potential claims for direct disability discrimination by perception and the extension of indirect discrimination to the disability arena. All these changes have the potential to be considerable improvements on the previous law. However, discrimination by perception is likely to pose particular problems in the disability context and the opportunity to minimise such difficulties through the provision of clear guidance has, to date, been missed. Further, while the arrival of indirect disability discrimination in the employment sphere is a considerable improvement on the previous approach, it is a pity that the opportunity was not seized to
103

[2008] UKHL 43.

381

Industrial Law Journal

Volume 40

reflect more carefully on the relationship between indirect discrimination and anticipatory reasonable adjustment and on the possibility of extending the latter into employment. Despite these positive instances of opportunities seized, significant opportunities have also been missed. Foremost amongst these missed opportunities is the failure to reform the definition of disability by abandoning the requirement that an impairment has substantial and longterm effects. Until this is done, British disability equality law will not truly have grown up. It is to be hoped that another opportunity to consider this issue will present itself in the near future and that this time it will be seized. The other significant opportunity which has been lost was the opportunity to build on the disability equality duty, and its accompanying specific duty, to enhance and embed the involvement of disabled people in the equality planning processes of public sector bodies. Without an obligation to involve disabled people, and with the message that it amounts to unnecessary bureaucracy, those public bodies which have begun to develop involvement processes and structures are likely to abandon them. The loss of this opportunity, it should be remembered, is also the loss of what was an important and potentially radical step in the promotion of equality and citizenship for disabled people.104 In addition to these opportunities seized and lost, the EqAs treatment of disability has itself generated opportunities. Before the EqA, the question of how to achieve harmonisation tended to be approached from the perspective of whether disability-specific approaches could be adapted so as to fit into the harmonised structure for other protected characteristics. There was very little debate about whether the law on other protected characteristics should be amended so as to bring it into line with that applying to disability. Under the EqA, disability-specific measures include discrimination arising from disability, reasonable adjustment duties and pre-employment health checks. All appear to have the potential to benefit protected characteristics other than disability. The EqA, by presenting the existence of disability-specific approaches so starkly, generates opportunities for on-going discussion from the perspective of whether the law applicable to other protected characteristics could be brought into line with the more proactive and disadvantage-focused disability-specific measures. The CRPD provides a useful lens through which to view domestic disability equality law. Both of the major opportunities missed or lost,
104

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

Dont Get Involved, above n.98, 266.

382

December 2011

Disability and Employment in the EqA

identified above, raise questions about CRPD compliance. Further, the CRPD demands that, when assessing the situation of disabled people, disability equality law should not be examined in isolation from other laws, policies and practices. The need to prohibit discrimination is only one of a wide range of obligations which it imposes on States. The purpose of this analysis has been to subject the EqAs employment provisions to a critical evaluation from a disability perspective and the exclusive focus has therefore been the EqA. However, it should be stressed that the power of the EqA to contribute to improving the lives of disabled people is dependent on the general policy and social context within which it operates. Its effectiveness is dependent on disabled people, employers and others being aware of its existence and its requirements. Its message that employers are responsible for making adjustments, where reasonable, to place disabled workers on a level playing field with their peers is dependent on positive portrayals of disabled people by government and the media and is undermined by images of them as work-shy or as scroungers.105 The full inclusion of disabled people in employment is also dependent on access to education, to housing, to transport, to healthcare and, very often, to support with daily living activities.106 There is great concern amongst disabled people that public spending cuts will jeopardise their access to all of these.107

Downloaded from http://ilj.oxfordjournals.org/ at 07988000 on January 8, 2012

House of Commons Work and Pensions Committee, Sixth Report, The Role of Incapacity Benefit Reassessment in Helping Claimants into Employment (London: Stationery Office, 2011) paras 3641. See also the letter of 27 July 2011 from the Chair of the Work and Pensions Committee, Dame Anne Begg, to the Minister for Employment, Chris Grayling, expressing serious concern about the on-going media misrepresentation of disabled people and benefit claimantsavailable at http://www.parliament.uk/business/committees/committees-a-z/commons-select/work-andpensions-committee/news/letter-to-chris-grayling-benefit-payment-statistics/ (date last accessed 18 October 2011). 106 See generally Working Futures?, above n.13. 107 See, eg, the Disabled People Against the Cuts website at: http://www.dpac.uk.net (date last accessed 18 October 2011); and Papworth Trust, Government Cuts Will Push Disabled People Further into Poverty, 31 August 2011.

105

383