The requirement by the Equality Act 2010 that a defendant in a claim for indirect discrimination must demonstrate that the alleged act of discrimination was a proportionate means of achieving a legitimate aim is significant with regard to the degree of protection afforded to persons with a disability under the Act. First, even though the provision of reasonable adjustment will answer a charge of indirect discrimination in most instances, there is still the theoretical possibility that indirect discrimination may occur in the context of disability in which the provision of reasonable adjustment will be no solution. In such cases, a public authority would have to rely on the objective justification to indirect discrimination by showing that the discriminating provision, criterion and practice was a legitimate aim pursued proportionately.
367 Surry Police v Marshall [2002] IRLR 843 (EAT).
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Second, the defense appears to be co-extensive with the substantive equality paradigm enunciated by the positive duty to promote equality.368 In determining whether a policy or practice was a proportionate means of achieving a legitimate aim in a claim for disability-related discrimination, a key consideration will not only be the claimant’s position in society in terms of the membership of a disadvantaged group such as persons with a disability but also the extent to which the public body or organization is complying with any duty upon it to promote equality for the relevant group of persons.369
In the context of disability, the proportionality test would mean that the courts are likely to take into account the fact that the public body is under a statutory duty to give priority to persons with disabilities on the basis of their disadvantaged position in society or because they have suffered from past discrimination. In other words, a failure to take account of the needs of a disadvantaged group such as persons with disabilities may now amount to discrimination. It may be unjustified to refuse to create an exception to the general norm, even where that norm could be justified as a proportionate means of achieving a legitimate aim. The advancement registered by the positive duty is the fact that it does not only impose a statutory obligation on Public bodies to identify and address unlawful discrimination, whether direct or indirect but most importantly, removes the need for any form of justification. Positive duties are proactive rather than reactive.370
Substantive equality authorizes measures that give preference to members of disadvantaged groups. It envisages the promotion of disadvantaged groups so as to achieve a society that adequately reflects the dignity of its members.371 Since the focus of substantive equality is on groups that are worse-off, the Court will generally be more inclined to uphold policies and practices that promote the position of disadvantaged individuals, and less inclined to uphold those policies and practices that entrenches pre-existing disadvantage. Thus, to the
368 S. Fredman, 'Providing Equality: Substantive Equality and the Positive Duty to Provide' (2005) 21 South African Journal on Human Rights pp163 – 190. See also, S. Fredman, ‘Equality: A New Generation? Supra no.9 pp.145-168
369 See Government’s Consultation on Improving Protection from Disability Discrimination Nov 2008 .Available at www.officefordisability.gov.uk.
370 Equality Act 2010 Section 149 (2). See also S. Fredman and S. Spencer, supra no. 65 pp. 14 – 19;
371 M. Wesson, ‘Equality and Social Rights: supra no.9 pp748-769.
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extent that their Lordships in the Lewisham case were prepared to factor the statutory duty to promote disability equality in to their decision, the duty would have operated to ensure that the disadvantaged position in society of the claimant is taken into account when deciding whether or not the Housing Policy of the local authority discriminated against the claimant in the provision of services. The positive duty to promote equality may thus be crucial in dealing with situations of indirect discrimination and in breaking down structural barriers.
4 Harassment and Victimisation 4.1 Harassment
Section 26 of the Equality Act 2010 prohibits harassment on similar terms as the DDA 1995.
However, the section includes sexual harassment or conduct of a sexual nature in the workplace.372 A person subjects a disabled person to harassment if he or she engages in, in relation to the disability, unwanted conduct which has the purpose or effect of
(a) Violating the disabled person’s dignity, or
(b) Creating an intimidating, hostile, degrading, humiliating or offensive environment for him.373
In determining whether a conduct amounts to harassment, the courts would apply a reasonableness test, taking into account all circumstances of the case especially the perception of the disabled person. Thus, although there is a reasonableness test, it is not necessarily an objective test as the view of the disabled person affected by the conduct is important. However, what is important here is the fact that, in determining whether or not a person has been guilty of harassment, courts will be expected to balance competing rights on the facts of each particular case.374
372 Equality Act 2010, Section 26(2) (a) and (b).
373 Equality Act 2010 Section 26 (1).
374 See generally Equality Act 2010, section 26 (4) (a), (b) and (c).
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With regard to employment, section 40(1) makes it unlawful for an employer to harass a disabled employee or a disabled job applicant. Also, by virtue of s40(2) of the EA2010, an employer would be vicariously liable for the harassment of an employee in the course of his employment by a third party if the employer failed to take such steps as would have been reasonably practicable to prevent the third party from harassing the employee. However, an employer will not be liable for harassment unless he knows that the employee has been harassed in the course of the employee’s employment on at least two other occasions by a third party. In order to establish liability for harassment, it is irrelevant whether the third party alleged to have been responsible for the harassment of the employee is the same or a different person on each occasion. 375
4.2 Victimisation
Unlike the DDA 1995 which defined victimization in terms of less favourable treatment, the Equality Act 2010 does not treat victimization as a form of discrimination.376 Consequently, there is no longer a need to compare treatment of an alleged victim with that of a person who has not made or supported a complaint under the Act.
Section 27 of the EA 2010 proscribes victimization which occurs when an employer subjects an employee or any other person to a detriment because the employee or other person;
• brought proceedings against the employer or any other person under the Equality Act 2010, or
• gave evidence or information in connection with such proceedings brought by any other person, or
• otherwise does anything under the Equality Act 2010 in relation to the employer or any other person, or
• alleged that the employer or other person has contravened the Equality Act, 2010.
375 Equality Act 2010 Section 40 (3).
376 Section 55(1) and (2) DDA 1995.
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The Act also makes it unlawful for an employer to Subject an employee or any other person to a detriment because the employer believes or suspects that the employee or other person has done or intends to do any of the above actions.377 However, there will be no issue of victimization if any allegation of the employee or other person was false and not made in good faith.378
In determining whether a conduct amounts to harassment, the courts would apply a reasonableness test, taking into account all circumstances of the case especially the perception of the disabled person. Thus, although there is a reasonableness test, it is not necessarily an objective test as the view of the disabled person affected by the conduct is important. However, what is important here is the fact that, in determining whether or not a person has been guilty of harassment, courts will be expected to balance competing rights on the facts of each particular case.379
With regard to employment, section 40(1) makes it unlawful for an employer to harass a disabled employee or a disabled job applicant. Also, by virtue of s40(2) of the EA2010, an employer would be vicariously liable for the harassment of an employee in the course of his employment by a third party if the employer failed to take such steps as would have been reasonably practicable to prevent the third party from harassing the employee. However, an employer will not be liable for harassment unless he knows that the employee has been harassed in the course of the employee’s employment on at least two other occasions by a third party. In order to establish liability for harassment, it is irrelevant whether the third party alleged to have been responsible for the harassment of the employee is the same or a different person on each occasion. 380
377 Equality Act 2010, Section 27 (1) (2).
378 Equality Act 2010, Section 27(3)
379 See generally Equality Act 2010, Section 26 (4) (a), (b) and (c).
380 Equality Act 2010, Section 40 (3).
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Chapter Four: Equality Schemes Need Prioritisation and the London Borough of Southwark
Introduction
The social integration of persons with disabilities into their communities through participation and the provision of welfare support to meet their needs have been recognised as an important dimension to the rights-based perspective of disability. According to Article 26 of the Charter of Fundamental Rights of the European Union(the European Social Charter), member states are called upon to recognise and respect the 'right of persons with disabilities to benefit from measures designed to ensure their independence, social and occupational integration and participation in the life of the community.381 However, one of the major challenges to the promotion of equality for persons with disabilities is the development of programmatic actions or positive measures as a way of giving expression to the rights of this group of citizens. This is due partly to the difficulties of accommodating the principles contained in the rights-based perspective of disability within the prism of polycentric socio-economic decisions that raise issues of resource allocation.382 In this respect, inspiration may be provided by Article 52(5) of the European Social Charter which expressly permits the use of the charter as a vehicle for positive policy initiatives.
Within the context of the public sector equality duty, the legislative vehicle for ensuring the development of programmatic or positive action measures needed to break down barriers and make participation of persons with disabilities in the mainstream more possible are the Equality Schemes.383 The Schemes are supposed not only to provide a framework for the delivery on the general duty but also to enable the co-ordination of the rights-based
381 The Charter of Fundamental Rights of the European Union was passed in 1961 by the European Commission and later revised in 1996.
382 See generally, E. Palmer, Judicial Review, Socio-Economic Rights and the Human Rights Act (supra no.133 pp 197-239. See also R v Birmingham City Council and M, G and H v Birmingham City Council (co-joint appeals) Neutral Citation Number: [2011] EWHC 1147 (Admin).
383 The Equality Act 2010 (Specific Duties) Regulations 2011 SI No. 2260 do not require relevant public authorities to produce and publish an Equality Scheme which was a central requirement under the repealed DDA 1995, Disability Discrimination (Public Authorities) (Statutory Duty) Regulations 2005 (SI 2005 No. 2966) Reg 2A & B.
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approach to disability across a broad range of services. As a policy tool that complements the general duty on Public authorities to promote equality, the Schemes provide the basis for identifying new or emerging organisational priorities and how they could be linked to the promotion of equality for persons with disabilities.
This chapter analyses the Southwark council’s Equality Schemes in the light of some of the key legal obligations under the general duty to promote equality and establishes that the Schemes are not just policy documents intended to assist the council in delivering on its general duty but represent a continuous long-term process of giving contextual meaning to the promotion of the rights of persons with disabilities.
The chapter has been framed around two basic and interrelated themes which are capable of capturing the essence of substantive equality for persons with disabilities. First, the participation of persons with disabilities in policy formation and implementation within Southwark council is analysed within the framework of the dialogue leading up to the drawing up of the council’s Equality schemes. Second, the chapter examines the council’s process of needs identification and prioritisation within the context of the statutory duty to assess under the provisions of the NHS and Community Care Act 1990, the National Assistance Act 1948 and the Chronically Sick and Disabled Persons Act 1970. Particular attention is given to the Eligibility criteria which provide the framework for ensuring the responsiveness on the part of Southwark council to the rights and felt needs of the residents with disabilities.