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Equality Act 2010: changes on who is protected

This page outlines changes to the meaning of 'disability' in the Equality Act 2010 compared with the Disability Discrimination Act 1995 (DDA), and also to what grounds of discrimination can be unlawful. The proposed changes do not necessarily apply to Northern Ireland.

2011 guidance for Equality Act 2010 has been issued, which replaced the 2006 guidance.

Removal of list of 'capacities'

Broadly, the DDA defined a disability as a physical or mental impairment which has a substantial and long-term adverse effect on one's ability to carry out normal day-to-day activities. It went on to say that an impairment can only be taken to affect normal day-to-day activities if it affects at least one of a number capacities, such as mobility, manual dexterity, speech etc.

The Equality Act 2010 (Schedule 1) removes this list of capacities from the definition of disability. It is no longer be necessary to show that the impairment affects mobility or speech etc.

Whether the list is there or not is not really relevant to stammering. The list of capacities includes 'speech', and so does not prevent stammering being treated as a 'disability'. What could help with stammering is if the legal definition of disability were extended (see below).

Discrimination because of association, or perceived disability

In Coleman v Attridge Law (July 2008) the European Court of Justice (ECJ) decided that 'discrimination by association' can be illegal in the workplace, under the Framework Employment Directive. The Employment Appeal Tribunal has held that in the light of this case UK law (even before the Equality Act) prohibits direct discrimination and harassment in employment even if they are not against the disabled person himself. An example is the situation considered in the Coleman case itself, namely discrimination against a mother because her child has a disability.

Even though the tribunal has held the DDA should be re-interpreted in this way, the actual wording of the DDA was limited to discrimination against the disabled person. This has being remedied in the Equality Act 2010. The new definitions in there of 'direct discrimination' and 'harassment' are intended to be wide enough to include protection for those who are associated with someone who is disabled.

The new definitions also extend to people who are perceived to be disabled. Discrimination by perception is likely to cover situations where the discriminator thinks a person has a disability which he does not have, and discriminates against him for that reason. This could be relevant to stammering if the stammer does not actually have a substantial effect but the employer perceives it to have - see Perceived disability.

The Equality Bill proposals here were originally announced by Harriet Harman on 3rd April 2009:

"The Equality Bill will ... prohibit direct discrimination and harassment based on association and perception in respect of race, sex, gender reassignment, disability, sexual orientation, religion or belief and age and in relation to both employment and areas beyond this, such as goods, facilities and services.

"This extension will implement the Coleman judgment in Great Britain and the extension to other protected characteristics is in keeping with the aims of the Equality Bill to simplify and strengthen the law." Full written statement by Harriet Harman (link to Hansard).

Extending the right beyond employment, e.g. to provision services, goes beyond the requirements of European law and the Coleman case. Also, note that the new rights for non-disabled claimants do not include a right to reasonable adjustments, nor a right against indirect discrimination - though outside of the DDA there is already a right to request flexible working (link to gov.uk). In April 2009, the House of Commons Work and Pensions Committee considered that carers should be given a right to reasonable adjustments under the Equality Bill (para 53-61 of their Report The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk), and that carers should also be covered by the equality duty on public authorities (para 213)

Association and perception: wording and interpretation of the Equality Bill

The Equality Act 2010 wording intended to cover discrimination by association or perception is actually in much more general terms - it talks of discrimination or harassment 'because of' or 'related to' disability. There were calls, including from the Equality and Human Rights Commission, for the legislation to be clearer in expressly mentioning discrimination by association and perception. The Government rejected an amendment to this effect in the House of Commons Committee (col 251-256, Public Bill Cttee, 16th June 2009 (link to UK Parliament website)). In doing so, the Solicitor General gave examples of instances, going beyond association and perception, that the Government intended the wider wording to cover:

"...The 'because of' turn of phrase in clause 13 is broad enough and is intended to be broad enough to cover much more than just cases in which the less favourable treatment is due to the victim's association with someone who has the characteristic or because the victim is wrongly thought to have that characteristic. The formulation is intended to and does cover cases, for instance, of less favourable treatment because of a refusal to comply with instructions to discriminate. It is also intended and does cover a case in which someone is treated as if they had a protected characteristic that they neither have nor are perceived to have at the time.

'Direct discrimination' has a number of forms - a lot of different forms. Even after the Bill, what the definition covers will continue to evolve through the case law. That is really the point. We do not want, by specifying particular kinds of direct discrimination, to imply that we are excluding kinds of discrimination that might come about in a situation that we have simply not foreseen when setting out the clause. So, we favour what we see as a broad formulation."

Regarding discrimination by perception, it seems that the claimant will need to show he was perceived to meet the legal definition of disability, i.e. to have an impairment with the required substantial and long-term effect. The Government opposed amendments to the contrary put forward in the House of Commons Public Bill Committee. Apparently, in the United States the Americans with Disabilities Act of 1990 specifically provides that a person is regarded as being perceived to be disabled if they are discriminated against based on that belief, whether or not the effects of the perceived disability meet the definition of disability under that Act. (col 251, Public Bill Cttee, 16th June 2009 (link to UK Parliament website)).

A Minister commented in the House of Lords debates that extending protection to perception will mean a person with a depressive condition who does not satisfy the Equality Act's definition of a disabled person will be protected if, for example, their employer discriminates against them because he considered mistakenly that the impairment is likely to recur (my emphasis). Col 1338 HL Hansard 2/3/10 (link to UK Parliament website).

More

See also
Employment: Discrimination by association.
Employment: Perceived disability.

Links to news reports:

Dual discrimination

It was announced in the Plan for Growth (link to hm-treasury.gov.uk) as part of the 2011 Budget that s.14 will not be brought into effect. However in May 2012 the government said only it would 'delay' the introduction of the dual discrimination provision (Ministerial Statement (link to edf.org.uk)). For more, see Multiple discrimination.

'Substantial' is now defined

For an impairment to be a disability, its effect on normal day-to-activities must be 'substantial'. S.212(1) Equality Act 2010 now defines 'substantial' to mean 'more than minor or trivial'. The Government accepted an amendment to this effect by Lord Low (col 1339 HL Hansard 2/3/10 (link to UK Parliament website)).

As the tribunal said in Goodwin v Patent Office (1999): "'Substantial' might mean 'very large' or it might mean 'more than minor or trivial'. Reference to the Guidance shows that the word has been used in the latter sense..."

The official guidance and the lower courts have indeed given the term this latter meaning. However, in SCA Packaging v Boyle it was suggested in the House of Lords that, despite such Guidance, judges start with a clean slate when deciding what legislation means. This provision in the Equality Act is a very welcome clarification to help guard against unpleasant surprises if the meaning of 'substantial' is challenged in higher courts.

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