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Definition of disability
• Section 6 and Schedule 1• (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
• Substantial – definition now in the Act (s.212(1) – more than minor or trivial)
Definition of disability
Schedule 1
• Replicates current provisions – long term; severe disfigurement; recurring conditions; effect of medical treatment; deemed disability; progressive conditions; past disabilities
• Regulation making powers – draft regs published –present exclusions (e.g. addiction to alcohol) remain
• Removal of list of capacities presently in Schedule 1 paragraph 4 – but see draft Guidance
• May make a difference to those with mental health issues
The Act• Makes it unlawful to
discriminate in a number of different life areas
• Employment and occupation, services, public functions,
• Associations (clubs) education, premises
• Special provision for transport (regulations)
4 forms of discrimination
• Direct – s.13• (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
s.15
• London Borough of Lewisham v Malcolm [2008] UKHL 43
• Section 15: Discrimination arising from disability
• (1) A person (A) discriminates against a disabled person (B) if—
• (a) A treats B unfavourably because of something arising in consequence of B’s disability
• (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
Discrimination arising from disability
• (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.
indirect discrimination
• Employment framework directive (and draft services directive)
• Common definition of indirect discrimination – section 19
indirect discrimination
• Indirect discrimination• (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
indirect discrimination
• Comparator – s.23• 23 Comparison by reference to
circumstances• (1) On a comparison of cases for
the purposes of section 13, 14, or 19 there must be no material difference between the circumstances relating to each case
Duty to make reasonable adjustments
• Common basic definition, section 20 with detail in schedules (Schedule 3 – work; Schedule 2 – services and functions; Schedule 4 – premises; Schedule 13 – education; Schedule 17 - associations)
• 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.
• 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.
Duty to make reasonable adjustments
• 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.
Duty to make reasonable adjustments
• Cannot make a disabled person pay for reasonable adjustments (s.20(7);
• Where first or third requirement relates to provision of information, the steps which it is reasonable to have to take include steps for ensuring that the information is provided in an accessible format
• In the second requirement, a reference to avoiding a substantial disadvantage includes a ref to removing, altering or providing a reasonable means of avoiding a feature
Reasonable adjustments – key changes
• Common threshold (substantial disadvantage)
• Pre-16 Education – obligation to provide auxiliary aids and services
• Premises – new obligation in relation to physical features and common parts (s.36 and sched 4 para 5) though can make disabled person pay for the adjustment
Reasonable adjustments – Goods and services
• Goods, facilities services and functions – Schedule 2
• 2 (1) A must comply with the first, second and third requirements.
• (2) For the purposes of this paragraph, the reference in section 20(3), (4) or (5) to a disabled person is to disabled persons generally.
• (3) Section 20 has effect as if, in subsection (4), for “to avoid the disadvantage” there were substituted—
• “(a) to avoid the disadvantage, or• (b) to adopt a reasonable alternative method of
providing the service or exercising the function.”
Premises• Physical features remain excluded
from scope (Schedule 4 para 2 and 8) so no obligation to e.g add grabrails, though some exceptions e.g. taps, colour of walls
• Conditions remain e.g. must make a request to take steps to avoid the disadvantage or provide the auxiliary aid
• New obligation in relation to common parts
Premises – common parts – eg hallway para 5
• Where A is a tenant of the premises, a unit-holder, or is otherwise entitled to occupy the premises, and uses or intends to use the premises as the person’s only or main home the controller of premises must comply with the second requirement in relation to the common parts
Premises – common parts
• There must be a request, and the adjustment must remove the disadvantage
• Controller must consult those likely to be affected (though no obligation to take into account purely prejudicial views)
• If controller decides to take steps, must make an agreement setting out responsibilities etc
• Will always be reasonable to require the dp to pay for cost of works, cost of maintaining and cost of restoration
• This is not yet in force and no date yet for bringing it into force
Goods facilities services and functions• What it is that is unlawful:
• Provision of services, etc. (s.29)• (1) A person (a “service-provider”) concerned with the
provision of a service to the public or a section of the public (for payment or not) must not discriminate against a person requiring the service by not providing the person with the service.
• (2) A service-provider (A) must not, in providing the service, discriminate against a person (B)—
• (a) as to the terms on which A provides the service to B;• (b) by terminating the provision of the service to B;• (c) by subjecting B to any other detriment.• (3) A service-provider must not, in relation to the provision
of the service, harass—• (a) a person requiring the service, or• (b) a person to whom the service-provider provides the
service (does not apply to sexual orientation or religion and belief)
Goods facilities services functions• Victimisation also prohibited
• (s.29(6))A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation
• Exclusions remain e.g. certain transport modes in respect of disability; judicial functions etc – see Schedule 3
Enforcement
• Enforcement in county court (s.114), as now, though no obligation for it to be a specific appointed county court (so far)
• Judicial review not excluded• Discretion to appoint assessors must be
exercised unless the judge is satisfied that there are good reasons for not doing so
• Practice direction re: informing the EHRC may be amended – not clear
Codes and guidance
• Implementation: bulk in force in October 2010• Guidance on definition of disability Codes of
practice – services and employment – must be taken into account where relevant
Cases
• Roads v Central Trains Ltd [2004] EWCA Civ 1541
• Ross v Ryanair and Stansted Airport Ltd [2004] EWCA Civ 1751
• Policy of the Act is not a minimalist one• Finnigan• Akerman-Livingstone
Allen v Royal Bank of Scotland
Allen v Royal Bank of Scotland- outcome
Any Questions??
