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The previous justification test is replaced. The service provider will have to show that his conduct is a 'proportionate means of achieving a legitimate aim'. The new test will also apply to other areas of the DDA such as employment. (Sources: ss.15 and 19 Equality Act 2010; Government response to the Discrimination Law Review, July 2008, para 11.22-11.28)
For more, see Objective justification defence.
The Equality Act 2010 contains two new heads of disability discrimination, which are intended to address the House of Lords decision in London Borough of Lewisham v Malcolm. That decision severely limited the scope to make a claim for less favourable treatment. More on Remedying the Malcolm case.
The Equality Act 2010 makes it easier to claim reasonable adjustments from service providers. It is no longer necessary to show that the provider's practice etc makes it 'impossible or unreasonably difficult' to access the service (previous DDA rules). The Equality Act test is whether the practice places the disabled person at a substantial disadvantage. This is the threshold previously used for employment.
(Sources: s.20 Equality Act 2010 and Schedule 2; Government response to the Discrimination Law Review, July 2008, para 11.31-11.44)
What then does 'substantial' mean? It might mean 'very large', or just 'more than minor or trivial'. Codes of Practice on other areas of the DDA where the 'substantial disadvantage' test was used for reasonable adjustments said it means 'more than minor or trivial'. However, this is now confirmed by the legislation itself. S.212(1) Equality Act 2010 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)).
In SCA Packaging v Boyle it was suggested in the House of Lords that, despite guidance such as the Codes, 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.
This is a further change in the Equality Act 2010. The Disability Rights Commision (DRC) had recommended it. The justification defence for reasonable adjustments has already been abolished in employment. The DRC pointed out that any concerns of the service provider etc are adequately addressed by the fact that only 'reasonable' adjustments are required. Allowing a failure to make a reasonable adjustment to be 'justified' is unfair and unnecessarily complicates the legislation. (A Framework for Fairness Response (on archived DRC website), p.28-29)
S.20(7) Equality Act 2010 (added on 13th January 2010) makes clear that a person required to make a reasonable adjustment is not entitled to require the disabled person to pay to any of the costs of complying with the duty. (There is a limited exception for where the law expressly says otherwise.) HL Hansard 13/1/10 (link to UK Parliament website) at col 565.
The justification defence is abolished for 'direct discrimination'. Under the DDA, direct discrimination was not justifiable in employment and most post-16 education. The Equality Act 2010 extends that approach to provision of services and other areas.
(Sources: s.13 Equality Act 2010; Government response to the Discrimination Law Review, July 2008, para 11.11)
The general Equality Act definition of 'direct discrimination' in s.13 is intended to include direct discrimination because of another person's disability, or because of a perceived disability.
In the Coleman case the European Court of Justice decided that discrimination and harassment by association (i.e. where it is someone else who is disabled) must be covered as regards employment. However, the Government decided to extend this also to services and other parts of the Act. For more, see Discrimination because of association, or perceived disability.
The Equality Act contains a freestanding right against harassment by service providers and by public authorities exercising their functions (s.29 Equality Act 2010). Even under the previous DDA though, harassment was likely to be unlawful under provisions against unfavourable treatment.
The general Equality Act definition of 'harassment' in s.26 now applies. Accordingly, as with 'direct discrimination' above, it includes harassment related to another person's disability, and perhaps harassment related to perceived disability. For more, see Discrimination because of association, or perceived disability.
In the Equality Act 2010 the Government is harmonising the law by providing for the burden of proof in non-employment disability discrimination cases to be transferred to the respondent once a prima facie case has been made. The Equality Act rules for services are the same as those for employment: Employment complaints: Shift in burden of proof.
(Sources: s.136 Equality Act 2010; Government response to the Discrimination Law Review, July 2008, para 11.77-11.78)
In the Equality Act 2010 the Government is outlawing discrimination against disabled people in the provision of goods, facilities and services in respect of relationships which have ended, as part of a harmonisation measure across all equality strands;.
(Sources: s. 108 Equality Act 2010; Government response to the Discrimination Law Review, July 2008, para 11.72-11.74)
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Last updated 28th January, 2011