Update - May 2010
This is a brief update on the Equality Act as affected by the early pronouncements of the Conservative - Liberal Democrat coalition government. The paper "The Coalition - our programme for government" makes no specific mention of the Equality Act and there has been little or no sign of any demands for a rewrite of the Equality Act from any quarter within the Coalition so far. The programme document makes several broad statements which can be read as broadly aimed at achieving or enhancing the goals of the Equality Act. It is probably a fair inference at this stage that the Equality Act is here to stay in much its present form.
Update - April 2010
The purpose of this page is to help you keep up to date on the important change to equality and discrimination law that is happening in 2010. The law itself was passed through Parliament finally on 6 April 2010 and received Royal Assent on 8 April 2010. There are many regulatory details to be worked out under whatever colour of government we have after May 2010. All the main parties supported the Bill in principle, so, while a new government might want to make changes to detail, it is unlikely to be replaced entirely or even changed substantially for some time.
The time line for introduction of the Equality Act 2010 is as follows:
- October 2010: the main provisions of the Equality Act will become law and the DDA will no longer have the force of law.
- April 2011: the integrated public sector Equality Duty, the Socio-economic Duty and dual discrimination protection apply.
- 2012: the ban on age discrimination in provision of goods, facilities, services and public functions applies.
- 2013: the private and voluntary sector gender pay transparency regulations (if required) and political parties publishing diversity data applies.
In the meantime, the Disability Discrimination Act (DDA) still effectively applies until October 2010. This means that, for example, if you were involved in a disability discrimination case before a tribunal in May 2010, it would still be subject to DDA rules. Therefore, our online training course, Webequality, will continue to refer to the DDA and quote DDA rules until October 2010, although we will give transitional information about progress on the new Act, as it becomes available.
Outline - the story as at June 2009
In the Spring of 2009, the UK Government introduced a new Equality Bill to Parliament. At this stage, the bill is in draft form. It's not law, but the Government intends that it will be by Spring 2010, i.e. before the next general election. It has had two readings in the House of Commons already.
Its purpose is to replace the "thicket" of equality and discrimination legislation in the UK with a single law, operating wherever possible on the same set of principles across all strands of equality - not only disability, but race, gender, age, etc. In other words, it will repeal the 1995 and 2005 versions of the DDA and incorporate their provisions into what will become the Equality Act 2010.
The Government says that "There are currently nine major pieces of discrimination legislation, around 100 statutory instruments setting out rules and regulations and more than 2,500 pages of guidance and statutory codes of practice." On that basis alone, there is a logical case for trying to rationalise and streamline.
The Government also wants to deal with the fact that not all equality objectives are working as would be hoped. One of the key points they make is that disabled people still lag a long way behind non-disabled people in finding and staying in work. For example, in these times of recession, it's far too easy for an employer, even a disability organisation, to discriminate against a disabled, part-time employee as someone they can't redeploy easily, compared to a full-time non-disabled counterpart. No prizes are given for guessing which one will be made redundant. The gap in levels of employment is still huge. This isn't good for how our economy works and, once again, the logic of improving the life chances of disabled people is difficult to argue against.
The devil in the Equality Bill is in the detail. It is human nature that every "stakeholder" representing an interest group, be it disabled people, racial minorities, gay and lesbian people or whoever, wants to press for the best treatment it can get for its interest group. All the same, there is real concern that the old legislation is not all the same and some of its provisions may be watered down or lost.
It is also a fact of life that, ever since 1995, the good intentions of the law as made in Parliament have, at intervals, been subverted by case law, i.e. decisions made in tribunals, appeal courts, etc, that may have seemed to many to be almost perverse in finding against the disabled person and in favour of the respondent, be it an employer or a provider of goods and services. This can lead to serious imbalances becoming institutionalised. One of the major purposes of the 2005 version of the DDA was to redress the balance to give the disabled person a fairer chance. The new Equality Bill is supposed to be doing the same thing, but some organisations feel it is not doing enough.
For example, the DDA can be said to encourage positive discrimination for disabled people. That does not mean disabled people get treated better than everyone else, it means that positive action should be encouraged to give them something more like a level playing field. Some disability activists believe that this part of the DDA may be watered down by the Equality Act.
Nevertheless, there are new features to the Equality Act as it applies to disability, in comparison to the DDA, which are not generally contentious. Some of these are:
- the list in the DDA about how to define disability by reference to day-to-day activities such as effect on manual dexterity or ability to concentrate, simply no longer applies, so that someone will be considered disabled simply if they have a physical or mental impairment or impairments that has or have a substantial and long-term adverse effect,
- discrimination by association with a disabled person, or on the basis of assuming that someone is disabled, will be unlawful. For example, if an employer discriminated against an employee because she had a disabled child and the employer thought the child would require excessive care by the mother, with lots of time off work, that would be unlawful.
- in victimisation cases, it will no longer be necessary to make comparisons with other victimisation cases, only to prove that the victim has suffered harm,
- for the first time, the concept of indirect discrimination will apply to disability. Indirect discrimination occurs when, for example, an employer has policies that do not explicitly disadvantage a particular group of employees, but in the real world, it is more difficult for that group to comply. If the employer is unable to justify those policies as reasonable, indirect discrimination occurs.
- the bill will introduce a single threshold for the point at which the duty to make adjustments is triggered, based on when a provision, criterion or practice, or a physical feature of premises places a disabled person at a “substantial disadvantage“ in comparison with persons who are not disabled. Formerly, this only applied in the employment field, but coverage related to provision of goods and services has been strengthened in line with employment,
- the bill will extend employer liability for harassment of their employees in the workplace by third parties such as customers or suppliers and also extend protection against harassment outside the workplace, where there was previously no protection on account of disability,
- there are several areas where age discrimination rules are strengthened and this is expected to help many older disabled people,
- the burden of proof in tribunal cases will be shifted onto the respondent so that, if the court or tribunal decides that there has been direct or indirect discrimination or discrimination arising from disability, the respondent will have to prove that there has been no breach of the principle of equal treatment,
- tribunals will have greater powers to recommend that respondents change their policies and procedures. This may not help the person bringing the case much, but it is deemed to be an important warning to the organisation concerned and to others to change their ways.
You will see that, in many ways, for better or perhaps sometimes for worse, the new law will have a number of subtle effects on the practical issues of disability equality in the UK. We consider this important enough that we will post updates in the public part of the site and compile a database or list of relevant resources, as and when we learn more of the progress of the Bill into law. If you want to keep up-to-date, don't forget to call back to this site!
External resources and discussion of the Equality Bill
- The Equality Act 2010 as published (note: pdf size 700 Kb)
- The Bill as laid before Parliament
- The Government Equalities Office page
- The Work & Pensions Committee view
- Sir Bert Massie talks to Disability Now (early 2009)
- RADAR Briefing on the Current State of the Equality Bill, April 2010 (note: WORD doc)
- Equality and Human Rights Commission page
- The Coalition - our programme for government (pdf file)