The Blog

Disability Discrimination and the Equality Act: Time for Reform?

The Equality Act was a fantastic achievement. However, there is more work to be done.

The Equality Act 2010 was a triumph in the dying days of the last Labour Government. Whilst Cameron's Coalition spent their final efforts in office attempting a highly partisan coup of John Bercow, the Speaker in the Commons, the previous administration legislated to harmonise and dramatically strengthen our equality law. Yet, five years on, many are beginning to assess the effect of the Equality Act and identify areas of potential reform.

On Royal Assent, Trevor Phillips, then Chair of the Equality and Human Rights Commission, said it was 'a moment to celebrate'. For disabled people, the Equality Act offered huge progress in confronting discrimination. Two provisions were particularly welcome.

Firstly, the new law protected disabled people from discrimination 'arising from the consequences of a disability'. This corrected the absurd position of the old law, which forced a disabled person to prove discrimination by comparing themselves to somebody without a disability but in exactly the same circumstances. For example, a person with Tourette's Syndrome sacked because of his outbursts might have to prove that he was treated differently to a person without Tourette's Syndrome, who was nonetheless disruptive. Of course, the non-disabled disruptive worker is likely to have been sacked as well. The comparative exercise was an almost impossible hurdle that made disability-related discrimination law redundant.

Secondly, the Act banned certain pre-employment questionnaires. Unless questions were intrinsically necessary for the job (for example a job requiring a level of physical fitness such as scaffolding), questions about health or fitness pre-appointment were illegal.

The aim of this welcome provision was to confront the disproportionate disadvantage caused by pre-employment health checks to disabled applicants in employment. No applicant should feel obliged to give notice of their disability, nor should the disability have an adverse effect on their employment prospects. Yet, the rate of employment among disabled adults is still stuck at around 30% below the rate of the work age population as a whole. Too often those who do work are trapped in basic level jobs, well below their skills and capabilities.

The Act also gave powers to the Equality and Human Rights Commission to act as an enforcer and arbitrator for complaints of the use of pre-employment questionnaires. When I asked the Commission about the actions they have taken to ensure employers were abiding by the new rule, they said there had only been 40 complaints since the Act came into force. I would suggest this reveals a lack of enforcement and awareness, rather than a lack of a problem. Of the 40 complaints, a large proportion came from the Civil Service and Government, where knowledge of employers' responsibilities might be presumed to be higher. Worryingly, a growing complaint has been recruitment agencies forcing candidates to complete health questionnaires as part of the agency's registration process. As employment agencies continue to grow, the next Government should force the Commission to proactively investigate the use of pre-employment questionnaires by the largest agencies.

If there is a lack of practical enforcement in some areas of the Act, there is also a fundamental conceptual problem in the 2010 Act meaning notions of disability are outdated and in need of reform.

To bring a claim for disability discrimination, a person must first show that they have a physical or mental impairment and the impairment has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Many in the disability community have attacked the definition. It focuses entirely on the 'impairment', asking claimants to overcome certain prescriptive hurdles - 'substantial', 'long-term' (12 months) and 'affecting day-to-day activities'.

This can prove problematic for disabled claimants seeking protection from discrimination in employment tribunals. They will often have to disclose intimate details and be subject to intrusive examination of the impairment. This can be very uncomfortable and some claimants are inevitably put off the idea of legal action as a result. Furthermore, the definition is particularly unsuitable for those with certain mental health conditions. For example, how can one prove their depression will last for 12 months? What is 'substantial' depression? Our awareness of the lack of provision of mental health issues in the NHS has grown over the last decade, with all three political parties making substantial protective commitments in their recent manifestos. With issues of employer awareness and adjustments for mental health issues coming to the fore due to the tragic aeroplane crash in the Alps, we need to ensure our employment law keeps up.

Getting rid of the prescriptive medical criteria for the definition of 'disability' would have the added benefit of ensuring our equality law aligned with international obligations. The UN Convention on the Rights of Disabled Persons, to which the UK are signatories, emphasises a disability not as an impairment an individual suffers but a social 'barrier that hinders full and effective participation in society on an equal basis with others'. The Convention accepts that a disability is not purely a medical condition but an 'evolving concept', resulting from 'interaction' between apparent impairments and 'attitudinal and environmental barriers'.

This social approach to disability would be a far healthier starting block. It would turn the law's gaze from individual impairment to our responsibilities to avoid stifling barriers. As long-standing disability campaigner Anne Begg MP has said, 'it is not my disability that stops me playing an equal part in society. It is society that has built the barriers and it is people in society who have the attitudes that cause the problem - not the disability.'

On top of potential reforms to the Equality Act is the necessary reforms around employment tribunal fees. Since the Coalition hiked employment tribunal fees, the number of claims for disability discrimination has fallen by 50%. A lack of access to justice makes equality law a blunt instrument. Labour is committed to reversing the charges. The Conservatives claim their policy as a triumph. The Lib Dems merely offer a review.

With the General Election now in sight, and five years on from the Act's assent, there are a number of reforms to be made. The Equality Act needs amending to ensure it remains relevant to new societal attitudes on mental health. Our institutions need emboldening to police and enforce the law as it stands. More fundamentally, our politicians need to stand up for access to justice.

The Equality Act was a fantastic achievement. However, there is more work to be done.