Industrial Law Journal Vol 40 No 4 December 2011 copy Industrial Law Society all rights reserved For permissions pleasee-mail journalspermissionsoupcomdoi101093indlawdwr021

359

Disability and Employment in the Equality Act 2010 Opportunities Seized Lost and GeneratedANNA LAWSON

ABSTRACT

This article critically evaluates employment-related changes made by the Equality Act 2010 from a disability perspective It identifies opportunities to enhance disability equality which were seized as well as those which were missed Where relevant these are held up for scrutiny through the lens of the United Nations Convention on the Rights of Persons with Disabilities by which the UK is now bound Two respects in which the Equality Act may fall short of that Conventionrsquos demands are identified In addition the article draws attention to equality measures in the Act which are specific to disability It is suggested that by including these measures and highlighting their disability-specific application the Act has generated fresh opportunities to open debate about whether such measures should be extended to other protected characteristics

1 INTRODUCTION

Through the Equality Act 2010 (EqA) the Labour Government aimed to lsquostandardise existing definitions and concepts unless there [was] an overriding reason not torsquo1 Predictably incorporating disability into this new harmonised framework presented particular challenges Many arose from structural differences between the pre-existing legislation governing disability discrimination (the Disability Discrimination Act 1995 (DDA)) and that governing other forms of discrimination (eg the Sex Discrimination Act 1975 and the Race Relations Act 1976 (RRA))

Prominent amongst these differences were the absence from the DDA of indirect discrimination the presence within it of a reasonable adjustment duty and of what was generally known as lsquodisability-related discriminationrsquo2

University of Leeds email ammlawsonleedsacuk 1 Government Equalities Office The Equality Bill Government Response to the Consultation (London Stationery Office 2008) para 73 2 See eg the use of this term in Disability Rights Commission DDA 1995 Code of Practice Employment and Occupation (London Stationery Office 2004)

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and the asymmetrical nature of its protection3 In the words of Mummery LJ

Important features of the 1995 Act have no equivalent in sex discrimination and race discrimination law4

The extent to which if at all disability requires different approaches to those required by other protected characteristics is a question which inevitably loomed large in the pre-EqA discussion It is also a question which necessarily shapes any disability-orientated evaluation of the EqA

Also essential to any such evaluation is reference to the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and its Optional Protocol5 to both of which the UK is a party The CRPD sets out the internationally agreed benchmarks towards which the UK has committed itself to work and against which it has agreed to be judged In relation to employment discrimination these supranational standards largely reflect those already established by European Union (EU) law6 Nevertheless the CRPD adds valuable breadth and context A fuller account of the CRPD is set out in Sarah Fraser Butlinrsquos contribution to this issue (see below) but the analysis of the relationship between the EqA and the CRPD provided in that article differs in significant respects from that provided here

This article provides a critique of the EqArsquos treatment of disability in the employment context Accordingly important changes made in non-employment areas (such as housing7 and education8) lie beyond its scope In the next section employment-related aspects of the EqA which are disability-specific will be examined A key element of the inquiry here will be whether different treatment of disability was needed After that attention will turn to a discussion of the impact on and implications for disability of selected employment-related aspects of the Act which apply to protected characteristics more generally

3 An asymmetrical approach was also applied to gender reassignment and marital status 4 Aylott v Stockton and Tees BC [2010] EWCA Civ 910 [1] (Mummery LJ) See also similar observations made by Mummery LJ in Clark v Novacold [1999] IRLR 318 [29]ndash[34] 5 See generally O Arnadoacutettir and G Quinn (eds) The UN Convention on the Rights of Persons with Disabilities European and Scandinavian Perspectives (Leiden Martinus Nijhoff 2009) 6 See in particular Directive 200078EC establishing a general framework for equal treatment in employment and occupation [2000] OJ L30316 7 Where changes prevent landlords from refusing consent unreasonably to physical alterations to common partsmdashsee EqA ss 36ndash8 and Sched 4 8 Where changes impose a reasonable adjustment duty on schools to provide disabled pupils with auxiliary aids and servicesmdashsee EqA s 85(6) and Sched 13

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361

Despite the fact that the CRPD uses the phrase lsquopersons with disabilitiesrsquo the term lsquodisabled peoplersquo will be used in this article except where direct quotations or sensitivity to context require otherwise This latter phrase which is criticised by Fraser Butlin9 is favoured and used by proponents of the social model of disability particularly in the UK10 This model conceptualises lsquodisabilityrsquo as a socially created phenomenon using the term lsquoimpairmentrsquo to refer to the functional limitations of an individual and the term lsquodisabilityrsquo to refer to the disadvantage or exclusion experienced by such a person because of societal barriers It thus focuses on the way in which people with impairments (not disabilities) are disabled by society

2 DISABILITY-SPECIFIC MEASURES

A The Definition of Disability

The EqA preserves the DDA approach to the role and the content of the definition of disability Its role is that of gatekeeper It grants access to the full protection of disability discrimination law only to those people it classifies as being or having been disabled A more limited form of protection is afforded to those who are treated less favourably or harassed because they are perceived to be disabled or associated with a disabled person

The asymmetrical nature of disability discrimination law staked out by the definition of disability has the advantage of facilitating more favourable treatment of disabled people It enables preferential treatment to be given to a disabled person without the risk of equipping a non-disabled rival with the material for a successful direct discrimination claim11 However it also presents significant difficulties for potential claimants

One such difficulty is the discomfort associated with having the details of onersquos impairment and its limiting effects publicly scrutinised This process which also operates under analogous provisions in the US Americans with Disabilities Act 1990 has proved so gruelling and personally invasive that it

9 See S Fraser Butlin lsquoThe UN Convention on the Rights of Persons with Disabilities Does the Equality Act 2010 Measure up to UK International Commitmentsrsquo (2011) 40 ILJ 428 435ndash6 (in this issue below) 10 See further M Oliver Understanding Disability From Theory to Practice (Basingstoke Macmillan 1996) and the sources cited by Fraser Butlin in support of the social model ibid at 428ndash438 11 Except in local authorities where such preferential treatment is prohibited by s 7 of the Local Government and Housing Act 1989

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has been likened to the cross-examination of rape victims12 Unsurprisingly perhaps evidence suggests that defendants often deliberately choose to challenge the disabled status of a claimant as a strategy for intimidating and pressurising them into settling or withdrawing the case13

An associated difficulty is that the disability definition requirement risks distracting judicial and other attention from the behaviour of the alleged discriminator and focusing it instead on the functional limitations of the victim The gravity of this risk is demonstrated by the estimate that almost a fifth of all DDA tribunal cases fail because of the disability definition14 While respectful scrutiny of an individualrsquos disability status might be expected to be the focus of proceedings concerning entitlement to welfare benefits the focus of discrimination proceedings should instead be the conduct of the alleged discriminator Indeed it has been suggested (by a US commentator) that a tendency to regard reasonable adjustments as a form of welfare benefit or handout often lies at the root of restrictive judicial interpretations of the disability definition15 Reasonable adjustment however is not a form of compensation or subsidy but a tool for requiring employers and others to remove particular disadvantages which their provisions criteria practices and premises would otherwise cause to the particular disabled person

Concerns such as these resulted in some widening of the definition of disability through amendments of the DDA in 2005 They also led to calls for further widening of the definition through the removal of the need for an impairment to be long term or to have a substantial effect16 These calls were

12 R L Burgdorf lsquoldquoSubstantially Limitedrdquo Protection from Disability Discrimination The Special Treatment Model and Misconstructions of the Definition of Disabilityrsquo (1997) 42 Villanova Law Review 409 561 See also for the argument that legal definitions of disability may themselves perpetuate and entrench social division and ablism F Kumari Campbell lsquoLegislating Disability Negative Ontologies and the Government of Legal Identitiesrsquo in S Tremain (ed) Foucault and the Government of Disability (Ann Arbor MI University of Michigan Press 2005) 13 J Hurstfield et al Monitoring the Disability Discrimination Act 1995 Phase 3 (London DRC 2004) 121 See also N Meager and J Hurstfield lsquoLegislating for Equality Evaluating the Disability Discrimination Act 1995rsquo in A Roulstone and C Barnes (eds) Working Futures Disabled People Policy and Social Inclusion (Bristol The Policy Press 2005) 83ndash4 14 N Meagre et al Monitoring the Disability Discrimination Act 1995 (London Department for Education and Employment 1999) 126 For criticism of the DDA definition see also C Woodhams and S Corby lsquoDefining Disability in Theory and Practice A Critique of the British Disability Discrimination Act 1995rsquo (2003) 32 Journal of Social Policy 1 C Pearson and N Watson lsquoTackling Disability Discrimination in the United Kingdom The British Disability Discrimination Actrsquo (2007) 23 Washington University Journal of Law and Policy 95 15 M Diller lsquoJudicial Backlash the ADA amp the Civil Rights Modelrsquo (2000) 21 Berkeley Journal of Employment amp Labor 19 especially at 48ndash50

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December 2011 Disability and Employment in the EqA

363

however largely unheeded in the drafting of the EqA where the disability definition survives substantially unchanged17

It is particularly disappointing that the requirement for an impairment to have any effect on normal day-to-day activities (let alone an effect which is substantial and long term) has been retained Examples of statutory definitions of disability which have no such requirement are to be found in Ireland18 and in Australia19 Further the DDA has never required a substantial adverse effect in cases of severe disfigurement20 nor since 2005 in cases where there has been a diagnosis of human immunodeficiency virus (HIV) infection cancer or multiple sclerosis21 Removing this requirement for all cases would have made disability discrimination claims available to people treated less favourably because of impairments with only very minor effects on their daily lives or because of an impairment which might affect them in the future (due for instance to a genetic predisposition22) Such a change would have channelled attention onto the behaviour of defendants and away from the particularities of claimantsrsquo bodily functions and sent out a clear message that lsquo[n]on-discrimination is a guarantee of equalityrsquo and lsquonot a special service reserved for a select fewrsquo23

The CRPD contains no definition of disability However Article 1 (the purpose clause) states that

persons with disabilities include those who have long-term physical mental intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others

This baseline appears to be set at a higher level than the EqArsquos requirement that an impairment has a substantial and long-term effect Article 1 uses the word lsquomayrsquo thereby suggesting that an actual hindrance of participation in society is not essential In addition it recognises that any

16 See in particular Disability Rights Commission Consultation on Definition of Disability in Anti-Discrimination Law (London DRC 2006) and House of Commons Work and Pensions Committee The Equality Bill How Disability Equality Fits Within a Single Equality Act (London Stationery Office 2009) paras 84ndash5 17 See further S Fraser Butlin 18 Irish Employment Equality Act 1998 s 2(1) 19 Australian Disability Discrimination Act 1992 s 4 20 See now EqA Sched 1 3 21 See now EqA Sched 1 6 22 For criticism of the omission of this issue from the EqA see R H Wilkinson lsquoThe Single Equality Bill A Missed Opportunity to Legislate on Genetic Discriminationrsquo (2009) 3 Studies in Ethics Law and Technology available at httpwwwbepresscomseltvol3iss1art3 (date last accessed 18 October 2011) 23 lsquoldquoSubstantially Limitedrdquo Protectionrsquo above n12 568

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364

such hindrance might result from the impairment lsquoin interactionrsquo with social barriers whereas the EqA insists that it results entirely from the impairment and in so doing anchors itself firmly in the medical or individual model of disability Removing the need to demonstrate that an impairment has an effect on onersquos ability to perform ordinary activities would release the EqA from these unhelpful moorings and allow attention to focus instead on the social dimension of the exclusion and disadvantage In failing to tackle the definition of disability head-on the EqA missed an important opportunity to reform disability equality law and free it from its current medical and welfarist shackles

B Discrimination Arising from Disability

Despite initial governmental reluctance24 a specific form of discrimination designed to replace the DDA notion of disability-related discrimination is included in the EqA Disability-related discrimination consisted of unjustified less favourable treatment for a reason related to the disabled personrsquos disability25

For many years the comparator requirement of disability-related discrimination was interpreted leniently in accordance with guidance in Clark v Novacold Ltd26 This simply required the claimant to establish that they had been treated less favourably than a non-disabled person to whom the disability-related reason for the treatment did not apply Thus a disabled person who was dismissed for taking time off work because of disability would be compared with a non-disabled person to whom that reason did not apply and who accordingly would not have needed to take time off work The leniency of the comparator requirement meant that the focus of disability-related discrimination claims was generally on whether the justification defence could be established

In the housing case of Lewisham LBC v Malcolm27 however Novacold was overturned and the comparator requirement interpreted with the same degree of strictness as it is in direct discrimination cases Thus less favourable treatment could be established only if it could be shown that

24 Office for Disability Issues Consultation on Improving Protection from Disability Discrimination (London Stationery Office 2008) 25 See eg DDA s 3A 26 (1999) 2 All ER 977 27 [2008] UKHL 43

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365

the claimant had been treated less favourably than a similarly situated non-disabled personmdashie to return to the example above a non-disabled person who had taken the same amount of time off work This approach reduced disability-related discrimination to a form of justifiable direct discrimination and effectively dealt its deathblow28

Section 15 of the EqA introduces lsquodiscrimination arising from disabilityrsquo which lsquoresurrect[s] Novacold and nullifie[s] Malcolmrsquo29 The comparator requirement is abandoned completely by the use of the phrase lsquounfavourable treatmentrsquo instead of lsquoless favourable treatmentrsquo Unlike direct discrimination however it requires the unfavourable treatment to have been lsquobecause of the claimantrsquos own disabilityrsquomdashthus ruling out the possibility of claims based on association or perception In addition and again unlike direct discrimination discrimination arising from disability is subject to a general justification defence

Section 15 brings the justification defence for discrimination arising from disability into line with the justification defence for indirect discrimination It is thus for the defendant to show that the unfavourable treatment is lsquoa proportionate means of achieving a legitimate aimrsquo This represents a significant improvement of the law on disability-related discrimination for which there were three different versions of the justification defence applicable in different parts of the DDA The two forms of defence with the widest reachmdashthose applicable to employment and to goods and servicesmdashwere both problematic and subject to heavy criticism30

The EqArsquos approach to justification undoubtedly achieves welcome simplicity and harmonisation Fraser Butlin (in this volume) argues that the justification defences for discrimination arising from disability and indirect discrimination are inconsistent with the CRPD This argument however appears to rest on an unsupportable interpretation of the CRPD Apart from its explicit

28 See R (on the application of N) v London Borough of Barking and Dagenham Independent Appeal Panel [2009] EWCA Civ 108 and Aylott v Stockton on Tees BC [2010] 910 for rulings that the Lewisham approach extended to education and employment respectively See also the more recent case of JP Morgan v Chweidan [2011] EWCA Civ 648 For a more detailed analysis of Lewisham and its implications see A Lawson Disability and Equality Law in Britain The Role of Reasonable Adjustment (Oxford Hart Publishing 2008) ch 4 29 Aylott v Stockton on Tees BC ibid [69] (Mummery LJ) 30 See eg on the employment test J Davies lsquoA Cuckoo in the Nest A ldquoRange of Reasonable Responsesrdquo Justification and the Disability Discrimination Act 1995rsquo (2003) 32 ILJ 164 and OrsquoHanlon v Commissioners of Inland Revenue and Customs [2007] EWCA Civ 283 [98] (Sedley LJ) and on the goods and services test A Lawson lsquoSelling Letting and Managing Premises New Rights for Disabled Peoplersquo (2000) 64 Conveyancer and Property Lawyer 128

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recognition of reasonable accommodation as a form of discrimination the definition of discrimination in Article 2 of the CRPD is similar to that in earlier United Nation human rights treaties Although justification is not expressly mentioned general comments by both the Human Rights Committee31 and the Committee on Economic Social and Cultural Rights32 have expressly acknowledged that certain forms of treatment may be discriminatory only if they cannot be justified There is no evidence to suggest that a different approach was intended in relation to the CRPD

As mentioned above the Government was initially unconvinced of the need to resurrect disability-related discrimination Although highly critical of the Malcolm decision33 the Governmentrsquos initial view was that what had previously been addressed through disability-related discrimination (and could not be addressed through direct discrimination) could instead be dealt with through a combination of reasonable adjustment and indirect discrimination34 This view however was energetically challenged The Discrimination Law Association for instance drew attention to situations where unfavourable treatment was not linked to a failure to make a reasonable adjustment but where proving indirect discrimination might prove impossible because of difficulties in identifying a provision criterion or practice in identifying a group similarly affected by the challenged measure or in proving disadvantage because of potentially restrictive interpretations of the relevant comparator group35

The Government was persuaded by these arguments and discrimination arising from disability thus appears in the EqA as a disability-specific form of discrimination The reason for it and the disruption it causes to the harmonisation exercise is the need to ensure that the standard of protection available before the EqA (or rather before Lewisham v Malcolm36) is not lowered Its existence does beg the question of whether a similar form of protection could usefully be extended to other grounds The Labour Government reported that prior to the EqA there was no significant

31 General Comment 18 lsquoNon-Discriminationrsquo (37th Session 10 November 1989) para 13 32 General Comment 20 lsquoNon-Discrimination in Economic Social and Cultural Rightsrsquo (42nd Session 4ndash22 May 2009) para 13 33 Consultation on Improving Protection above n24 19 34 Ibid 35 Discrimination Law Association Response to the Consultation lsquoImproving Disability Discriminationrsquo (London DLA 2009) See also the evidence presented to and discussed by The Equality Bill above n16 paras 28ndash34 36 [2008] UKHL 43

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appetite for the removal of the comparator requirement from direct discrimination37 However it did not consult on introducing an additional form of discrimination to run alongside the familiar comparator-based form of direct discrimination which would be based on unfavourable treatment and accompanied by a justification defence Nevertheless during its passage through Parliament the EqA was amended to permit claims for pregnancy and maternity discrimination to be based on lsquounfavourablersquo rather than lsquoless favourablersquo treatment38 The EqArsquos failure to introduce the notion of lsquodiscrimination arising from religion and beliefrsquo has been identified as a missed opportunity by Bob Hepple who argues that it would have avoided the need to make lsquohair-splitting distinctions between direct and indirect discriminationrsquo39 The extension of such a form of discrimination to all protected characteristics might provide a useful means through which to tackle disadvantage without having to negotiate the perils of a comparator requirement40

C The Reasonable Adjustment Duty

Duties to make reasonable adjustments appeared in UK law for the first time in the DDA preceding the Employment Equality Directive41 requirement to introduce such duties in the employment context and the CRPD requirement to impose them more broadly42 The DDA contained separate provisions on reasonable adjustment in each of its different parts The EqA however sets out the core of the duty in sections 20ndash22 These sections are supplemented by additional context-specific detail in the EqArsquos voluminous schedules

Section 21 makes it clear that a failure to comply with a reasonable adjustment duty (as set out in section 20 and the applicable schedule) will constitute unlawful discrimination Section 22 confers a regulation-

37 The Equality Bill Government Response above n1 paras 74ndash710 38 EqA ss 17 and 18 39 B Hepple Equality The New Legal Framework (Oxford Hart Publishing 2011) 43 40 For criticism of systems which place heavy reliance on the comparator see A McColgan lsquoCracking the Comparator Problem Discrimination ldquoEqualrdquo Treatment and the Role of Comparisonsrsquo (2006) 6 EHRLR 650 41 Directive 200078EC above n6 Art 5 42 CRPD Art 5 See for a discussion of the implications of this obligation in the European context A Lawson lsquoReasonable Accommodation and Accessibility Obligations Towards a More Unified European Approachrsquo (2011) 11 European Anti-Discrimination Law Review 11

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making power and section 20 sets out the content of the duty Of particular significance are the three requirements set out in section 20(3) (4) and (5) These are to remove a substantial disadvantage to which a disabled person would otherwise be exposed by first altering provisions criteria or practices second altering removing or circumventing physical features43 and third providing auxiliary aids44

Section 20(6) provides that where the substantial disadvantage under the first or third requirement concerns the provision of information it will be reasonable to take steps to ensure that the lsquoinformation is provided in an accessible formatrsquo

The EqA has the effect of tidying up and harmonising the previous reasonable adjustment duties However most of the changes were made in non-employment contexts and the effect is to bring them into line with the DDA approach to the employment reasonable adjustment duties Thus the justification defence for a failure to make a reasonable adjustment (which previously existed in non-employment areas) is removed The trigger for the duty of lsquosubstantial disadvantagersquo (which previously applied in the employment context) is now applied across the board lsquoSubstantialrsquo is defined as meaning lsquomore than minor or trivialrsquo45 and therefore seems to set the level of required disadvantage at a relatively low level46

Accordingly Schedule 8 of the EqA which concerns reasonable adjustment in employment sets out a scheme which is in substance very similar to that which applied under the DDA In particular the duty retains its entirely reactive or responsive nature It is a duty to remove the substantial disadvantage faced by an lsquointerested disabled personrsquo47 (who is a particular individual standing in one of a range of specified relationships with the employer eg employee or applicant) The duty does not arise unless the employer knows or ought to know that the person in question is disabled and exposed to the relevant substantial disadvantage48

43 Further guidance on the extent and nature of this requirement is provided in s 20(9) and (10) 44 A term which according to s 20(11) includes auxiliary services 45 EqA s 212(1) 46 It is therefore suggested that Fraser Butlinrsquos argument (see this volume below at p 437) that this requirement is inconsistent with the CRPD is likely to succeed only if lsquosubstantialrsquo is interpreted by the courts more strictly than s 212 would appear to warrant 47 Sched 8 s 2(2)(c) 48 Sched 8 s 20

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369

The fact that the EqA employment reasonable adjustment duty is reactive is entirely consistent with the Employment Equality Directive and the CRPD Reasonable accommodation in both these instruments is defined as being a duty to respond to the disadvantage experienced by a particular individual and to take account of the particular circumstances of the specific case and the specific person Such sensitivity to the particular individual and their circumstances is an essential mechanism for ensuring that a countless range of barriers can be removed on a case-by-case basis for individuals with a vast range of different impairments working methods backgrounds and skills However in non-employment areas (other than premises) reasonable adjustment duties under the EqA (as under the DDA) are anticipatory in nature49 These anticipatory duties have a much greater potential to drive systemic change than does the reactive employment duty It is disappointing that they have not been extended to the employment sphere However as will be discussed below the extension of indirect discrimination to disability may compensate to some extent for this omission

Disability remains the only protected characteristic in respect of which a reasonable adjustment duty operatesmdasha limitation which is also to be found at the level of EU and international law There have been calls for a more expansive approach which would extend such duties to religion50 or to other characteristics more generally51 There was however surprisingly little discussion of such a possibility in the lead up to the EqA Such a discussion might have been helpful in identifying whether disadvantages often associated with other protected characteristics require the flexibility of response of a reasonable adjustment duty or can be more effectively tackled through specific schemes (such as those applying to flexible working and parental leave)

D Pre-Employment Health Checks

Section 60 of the EqA introduces a new prohibition which subject to certain exceptions52 prevents employers asking applicants about their health before

49 See generally Disability and Equality Law above n28 50 B Hepple M Coussey and T Choudhury Equality A New Framework (Oxford Hart Publishing 2000) recommendation 21 paras 277ndash282 See also Equality above n39 43 51 T Degener lsquoIntersections between Disability Race and Gender in Discrimination Lawrsquo in D Schiek and A Lawson (eds) EU Non-Discrimination Law and Intersectionality Investigating the Triangle of Racial Gender and Disability Discrimination (London Ashgate 2011) 52 EqA s 60(6)

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deciding whether to employ them While lsquohealthrsquo is wider than disability it clearly includes disability and claimants in disability discrimination proceedings may refer to the fact that an employer has asked a prohibited question and relied upon the information elicited53 The Equality and Human Rights Commission (EHRC) is also able to take proceedings against an employer who has asked prohibited questions regardless of whether there was any reliance on the information elicited54

The extent of the exceptions is clearly of critical importance to the scope and effect of section 60 They cover questions which are necessary in order to establish whether there is a need to make adjustments to the interview or assessment process to carry out positive action schemes in favour of disabled people and to determine whether a person has a particular impairment when having that impairment is an essential requirement of the job Exceptions also cover questions necessary for diversity monitoring and importantly for establishing whether the applicant will be able (with the benefit of reasonable adjustments) to carry out a function which is lsquointrinsic to the workrsquo This last exception is likely to be heavily relied on by employers unwilling to abandon pre-employment health checks55

Section 60 recommendations for which date back to 199956 has been described as lsquoundoubtedly the most important new provision for disabled peoplersquo57 Its rationale is the disproportionate disadvantage caused by pre-employment health checks to disabled applicants and the difficulty of challenging rejections made at this early stage of the recruitment process Nothing in section 60 prevents employers from requiring health checks after employment offers have been made58 However Liz Sayce (the Executive Director of the Royal Association for Disability Rights) has urged employers to abandon universal pre- and post-employment health check policies arguing that they are expensive and tend to create an unproductive

53 EqA s 60(3) (4) and (5) 54 EqA s 60(2) 55 Guidance on it is provided in EHRC Equality Act 2010 Code of Practice Employment (London EHRC 2011) para 1368 56 Disability Rights Task Force From Exclusion to Inclusion (London Department for Education and Employment 1999) recommendations 532 and 533 57 C Casserley and C Gooding lsquoDisabilityrsquo (July 2010) 40 Discrimination Law Association Briefings Briefing 563 58 For an example of a case in which the withdrawal of a job offer based on recommendations from an occupational health assessor was successfully challenged as disability discrimination see Paul v National Probation Service [2004] IRLR 190

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environment of defensiveness and secrecy about health and disability issues59 She suggests that employers might focus instead on requesting information as part of a process of assessing employee adjustment or support needs

Section 60 is an interesting addition to our equality law It identifies a widely used practice which frequently operates disproportionately to the disadvantage of people with one of the protected characteristics Instead of leaving this practice to be challenged through actions for indirect or other discrimination however it lays down a blanket prohibition against that practice and carves out specified exceptions It gives the EHRC power to police adherence without the need to identify specific victims

The effectiveness of section 60 will be heavily dependent on judicial interpretation of the lsquofunctions intrinsic to the jobrsquo exception and on the vigilance of the EHRC in its policing role Nevertheless it marks a new and innovative approach to the promotion of equality60 and it will be interesting to see whether its lead is followed by the enactment of other provisions dealing with other types of practice (eg rules preventing the wearing of head gear)

3 THE DISABILITY DIMENSION OF GENERIC MEASURES

A Direct Discrimination

Direct discrimination is now governed by section 13 EqA and applies to all protected characteristics It was introduced into the DDA only in 2004 as a result of the Employment Equality Directive61 It was then confined to employment occupation and post-16 education but now applies throughout the EqA Its application to disability has presented a number of challenges

First the frequently troublesome question of identifying the appropriate comparator has raised particular difficulties in the disability context Under the DDA the treatment of the disabled person had to be compared with the treatment of lsquoa person not having that particular disability whose relevant circumstances including his abilities [were] the same as or not materially different from those of the disabled personrsquo62 Importantly and unlike

59 L Sayce lsquoEmployment Health Checks Time for a Rethinkrsquo (July 2010) 40 Discrimination Law Association Briefings Briefing 564 60 It is however not new on the world stage similar provisions appearing in s 102(c) of the US Americans with Disabilities Act 1990 42 USC 12 61 DDA (Amendment) Regulations 2003 62 DDA s 3A(5)

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the US approach where reliance is placed on the notion of a lsquoqualified individual with a disabilityrsquo63 there was no need to assess the abilities of a disabled person as they would have been with the benefit of any necessary reasonable adjustments

The difficulty of establishing less favourable treatment on this basis is illustrated by High Quality Lifestyles v Watts64 in which the claimant was HIV+ The appropriate comparator was held to be a hypothetical person who had the same abilities skills and experience as the claimant and also some condition other than HIV which carried the same risk of transmission Unsurprisingly it could not be demonstrated that Mr Watts had been treated less favourably than such a comparator and his claim for direct discrimination therefore failed

A more generous approach to the construction of a hypothetical comparator appeared to be adopted by the Court of Appeal in Aylott v Stockton on Tees65 The first instance decision to construct a hypothetical comparator who had taken time off work because of a broken bone (rather than because of a mental illness such as that of the claimant) but not to factor into the comparator circumstances linked to the claimantrsquos disability such as difficult relationships with colleagues was upheld by their Lordships66 This appeared to open up the possibility of impairment-related behaviour being treated as part of the disability and therefore being withdrawn from the range of circumstances to be attributed to the comparator Such an approach has attracted criticism67 It appears inconsistent with the approach adopted to direct discrimination because of religion and belief where courts have generally distinguished the relevant belief from the behaviour through which it is manifested It also risks making it possible for people with very challenging forms of behaviour to establish less favourable treatment in direct discrimination claims where there is only a very limited form of justification defence

Interestingly in Aitken v Commissioner of Police of the Metropolis68 however the Court of Appeal seemed to adopt a more cautious approach Aylott was distinguished on the grounds that in Aitken the relevant circumstances took the form of behaviour which had been observed by others whereas in Aylott they took the form of difficult relationships with

63 Americans with Disabilities Act 1990 42 USC s 12101(8) 64 [2006] IRLR 850 65 [2010] EWCA Civ 910 66 Ibid [45]ndash[46] (Mummery LJ) 67 D Newman lsquoDirect Discrimination Religion and Disabilityrsquo (2011) 211 EOR 17 68 [2011] EWCA Civ 582 [60]

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colleagues which were inseparable from his colleaguesrsquo stereotypes about mental illness This distinction may prove difficult to apply in future cases

The EqArsquos approach to the direct discrimination comparator is the same as that of the DDA69 It therefore provides no easy answers to the difficulties discussed above However the existence of discrimination arising from disability with its general justification defence may well provide a useful alternative to claimants and therefore encourage judges to maintain their retreat from Aylott and adopt a strict approach to the construction of the direct discrimination comparator

The second aspect of direct discrimination which has particular relevance to disability is its potential to found claims for discrimination by association The European Court of Justice in Coleman v Attridge Law70 ruled that the DDArsquos restriction of direct discrimination and harassment claims to people who were themselves disabled was inconsistent with the Employment Equality Directive This resulted in the reading of words into the DDA to allow people such as Sharon Coleman (the mother and principal carer of a disabled child) to bring direct discrimination claims if they could demonstrate that they had been treated less favourably because of the disability of another person

Section 13 of the EqA avoids these difficulties by simply prohibiting less favourable treatment lsquobecause of a protected characteristicrsquo It thus provides a clear basis for direct discrimination claims brought by people (such as carers or relatives) who are not themselves disabled but who are treated less favourably because of their association with somebody who is It should be stressed however that the EqA does not extend the reasonable adjustment duty to anybody who is not themselves disabled

The third of the aspects of direct discrimination that will be addressed here is very closely linked to the second It concerns claims brought by people who are not actually disabled but who have been less favourably treated because of a mistaken belief that they are disabledmdashdiscrimination by perception Again this type of claim was inconsistent with the DDArsquos restriction of coverage to people who were themselves disabled Even after Coleman this type of claim was highly problematic for the DDA71

While section 13 undoubtedly now permits such claims in theory they are likely to raise some difficult questions in the disability context These arise

69 EqA s 23 and in particular s 23(2) 70 Case C-30306 Coleman v Attridge Law [2008] ECR 1-5603 [2008] IRLR 722 71 J v DLA Piper [2010] UKEAT 0263_09_1506

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374

largely from the detail and complexity of the EqArsquos definition of disability Scrutinising an employerrsquos mistaken perception of the claimant to ascertain whether it meets all the requirements of that statutory definition is an exercise which would be both difficult and undesirable It would require examination of whether the employer (who would be keen to deny anything that might attract liability) perceived the claimant to have a physical or mental impairment which had a substantial and long-term effect on their ability to carry out normal day-to-day activities In the words of Underhill P72

What the putative discriminator perceives will not always be clearly identifiable as lsquodisabilityrsquo If the perceived disability is say blindness there may be no problem a blind person is necessarily disabled But many physical or mental conditions which may attract adverse treatment do not necessarily amount to disabilities either because they are not necessarily sufficiently serious or because they are not necessarily long-term If a manager discriminates against an employee because he believes her to have a broken leg or because he believes her to be lsquodepressedrsquo the question whether the effects of the perceived injury or of the perceived depression are likely to last more or less than twelve months may never enter his thinking consciously or unconsciously (nor indeed in the case of perceived lsquodepressionrsquo may it be clear what he understands by the term) In such a case on what basis can he be said to be discriminating lsquoon the ground ofrsquo the employeersquosmdashperceivedmdashdisability

These difficulties will almost certainly reach the courts in the near future73 Claimants (even those who are clearly disabled) will undoubtedly be tempted to base their case on discrimination by perception if there is a chance that a less invasive approach to the disability definition will be adopted in this context Focusing on the perception of the employer might avoid the intrusive examination of functional abilities which has become routine in disability cases

Discrimination by perception thus has the potential to circumvent at least in direct discrimination cases the hazards of the definitional gateway through which claimants have previously had to pass Ironically however the strictness of the direct discrimination comparator requirement is likely to render any such circumvention of use to very few claimants

In conclusion given the predictability of the questions posed by direct discrimination by perception of disability it is a pity that guidance on it was not provided either by the EqA or by the code of practice The possibility

72 Ibid at [62] 73 Attempts to raise it in connection with the DDA have already been made in J v DLA Piper ibid and also in Aitken v Commissioner of the Police of the Metropolis [2011] EWCA Civ 582

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December 2011 Disability and Employment in the EqA

375

of discrimination by perception of disability also exists under the US Americans with Disabilities Act74 In tackling the emerging problems in the UK useful lessons might therefore be learned and guidance derived from an analysis of relevant US experience75

B Indirect Discrimination

Section 19 of the EqA introduces indirect discrimination for the first time (in the UK) into the realms of disability Prior to this the UK relied on the proviso in Article 2(2)(b)(ii) of the Employment Equality Directive to justify the absence of indirect disability discrimination from domestic law76 The wording of this proviso however is at best ambiguous and there was concern that the demands of the Directive had not been met77

Indirect discrimination while providing a remedy to individual litigants has potential to address systemic barriers and institutional discrimination in that it requires potential defendants to scrutinise the possible disproportionate impact of their provisions criteria and practices on members of relevant groups In this sense it is group-oriented78 The reactive reasonable adjustment duty which operates in the context of employment by contrast is primarily individual-oriented as its focus is removing the disadvantage experienced by one particular individual So too are the concepts of direct discrimination and disability-related discrimination

Thus before the EqA the DDArsquos employment provisions did not recognise the group dimension of disability discrimination The only mechanism that could be used to require employers to identify and avoid or remove institutional barriers against disabled people was the disability equality dutymdasha duty which although highly significant did not found

74 Americans with Disabilities Act 1990 42 USC 12 s 3(2)(c) 75 See eg A B Mayerson lsquoRestoring Regard for the ldquoRegarded Asrdquo Prong Giving Effect to Congressional Intentrsquo (1997) 42 Villanova Law Review 587 76 The Draft DDA (Amendment) Regulations 2003mdashExplanatory Notes and Supplementary Questions para 19 Consultation on Improving Protection above n24 para 25 77 See eg K Wells lsquoThe Impact of the Framework Employment Directive on UK Disability Discrimination Lawrsquo (2003) 32 ILJ 253 at 271 and K Monaghan Blackstonersquos Guide to the Disability Discrimination Legislation (Oxford Oxford University Press 2005) s 522 78 For an interesting discussion of the tensions between the individual and group dimensions of indirect discrimination and its consequent lsquoconceptual hybridrsquo status see D Schiek lsquoIndirect Discriminationrsquo in D Schiek L Waddington and M Bell (eds) Cases Materials and Texts on National Supranational and International Non-Discrimination Law (Oxford Hart Publishing 2007) especially at 332

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376

discrimination actions and applied only to the public sector This individual orientation of the pre-EqA law on disability discrimination in employment represented a failure to attach sufficient weight to the way in which people with impairments as a group are marginalised and disabled by general societal barriers and attitudesmdasha failure which as the following words of Lord Brown demonstrate is shared by some members of the judiciary79

Disabilities are too diverse in their nature for the concept to lend itself easily to the notion of indirect discrimination What indirect discrimination against the disabled would equate to say a requirement for employees to be at least six feet tallmdashpresumably indirectly discriminatory against both women (sex) and those of Asian origins (race) The needs of the disabled are rather different

The drafters of the EqA are to be congratulated for resisting such views and introducing indirect discrimination into disability employment equality law Given its group dimension indirect discrimination is better placed than reactive reasonable adjustment to challenge and break down systemic barriers80 In addition its extension to the arena of disability employment law carries the important symbolic message that disability discrimination is not an entirely individualised affair but one that demands scrutiny of general policies and organisational structures and practices Attention has been drawn in other jurisdictions to the importance of exploiting the potential of indirect discrimination or disparate impact provisions as well as to the fact that they often appear to be little used81 A number of Australian cases however provide interesting examples of successful indirect disability discrimination cases82

79 Lewisham v Malcolm [2008] UKHL 43 [114] 80 See for recognition of the different potentials of these two forms of discrimination in this regard L Waddington and A Hendriks lsquoThe Expanding Concept of Employment and Discrimination in Europe From Direct and Indirect Discrimination to Reasonable Accommodation Discriminationrsquo (2002) 8 International Journal of Comparative Labour Law and Industrial Relations 403 415 lsquoImpact of the Frameworkrsquo above n77 271ndash2 and R Whittle lsquoRights Perspectiversquo (2002) 27 European Law Review 303 310 81 See eg on the US M A Stein and M E Waterstone lsquoDisability Disparate Impact and Class Actionsrsquo (2006) 56 Duke Law Journal 861 and on Ireland O Smith lsquoA Pandisability Analysis The Possibilities and Pitfalls of Indirect Disability Discriminationrsquo (2009) 60 NILQ 361 82 See eg Waters v Public Transport Corporation [1991] HCA 94 where the replacement of tram conductors by a scratch-card ticketing system was successfully challenged Maguire v Sydney Organising Committee for the Olympic Games (2001) Equal Opportunity Cases 93ndash123 and 124 where the failure of the Organising Committee to ensure that its website was accessible to blind people was successfully challenged and Hurst and Devlin v Education Queensland [2006] FCAFC 100 where the use in schools of English Sign Language (rather than Australian Sign Language) was successfully challenged

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December 2011 Disability and Employment in the EqA

377

In the UK indirect disability discrimination is new and as yet untested However the closely related concept of anticipatory reasonable adjustment existed in non-employment areas (other than housing) under the DDA and continues to do so under the EqA83 This concept has been used to good effect in challenging disabling barriers In the three Court of Appeal cases to which it has given rise claimants have succeeded in challenging the physical inaccessibility of a train station84 and a bank85 and the lack of adequate assistance in an airport86 Any discussion of the future of indirect disability discrimination in the UK demands that attention be given to the workings of this anticipatory reasonable adjustment duty and its relationship with indirect discrimination

The anticipatory reasonable adjustment duties are defined by reference to section 20 and its three reasonable adjustment requirements Service providers (a term used here to refer to all those to whom the anticipatory duty applies) are required on an on-going basis to monitor their services or functions and to anticipate any potential disadvantage which might be caused to disabled people by their provisions criteria or practices by their physical features or by their auxiliary aid or service provision If any such disadvantage could be anticipated service-providers are required to take such steps as are reasonable to remove it even if no disabled person has yet actually been disadvantaged The duty however can be enforced only by a disabled individual who has been substantially disadvantaged as a result of non-compliance with the duty These duties also have a reactive dimension (which falls outside the scope of the present discussion) in that where service providers have become aware that a particular disabled person is experiencing a disadvantage in accessing their services they will be required to take reasonable steps to remove that disadvantage87

Thus like indirect discrimination the anticipatory reasonable adjustment duty contains an element of group disadvantage Despite fears such as those of Lord Brown quoted above the identification of a relevant group appears to have presented little difficulty in this context Admittedly however no case has yet concerned an impairment resulting in particularly unusual or unforeseeable effects

83 See further EHRC Equality Act 2010 Code of Practice Services Public Functions and Associations (London EHRC 2011) ch 7 and Disability and Equality Law above n28 84 Roads v Central Trains [2004] EWCA Civ 1540 85 Allen v Royal Bank of Scotland [2009] EWCA Civ 1213 86 Ross v Ryanair and Stansted Airport [2004] EWCA Civ 1751 87 Equality Act 2010 Code of Practice above n83 para 726

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Useful guidance on the group disadvantage element of anticipatory reasonable adjustment was provided by Sedley LJ in Roads v Central Trains88 He stressed that it is not necessary to show that lsquoall or most disabled personsrsquo would have been disadvantaged Evidence that there would have been lsquoany significant impact on say wheelchair users as a classrsquo would suffice This approach reflects that envisaged by the EqA for indirect disability discrimination89 For indirect discrimination however there is a requirement that members of the group have the same disability as the claimant There is no such explicit requirement in the anticipatory duty the emphasis of which is instead on anticipation of types of disadvantage It is as yet unclear whether this difference will prove significant

Sedley LJ also warned that reliance on statistical evidence when establishing group disadvantage may prove lsquoinvidious or arbitraryrsquo and recommended that judges should instead rely on their own appraisal of the situation with the help of expert evidence where appropriate90 It is to be hoped that this robust approach is also applied in indirect discrimination cases and that judges are able to lsquoappraisersquo situations in such a way as to gain the respect of the broad disability community

One potentially important difference between indirect disability discrimination and reasonable adjustment (both reactive and anticipatory) is that indirect discrimination can be used to challenge only discriminatory provisions criteria or practices Reasonable adjustment duties generally go beyond this to require action in addition where a disadvantage is caused by a physical feature or by the absence of an auxiliary aid91 This suggests that in the employment context (where no anticipatory reasonable adjustment duty exists) disabled claimants would need to fall back on the reactive reasonable adjustment claim to challenge disadvantage created by physical features or the lack of auxiliary aids It would thus withdraw physical access and auxiliary aid provision from the ranks of issues which indirect discrimination requires employers to scrutinise for possible group disadvantage It is a pity that provision was not made as it has been by relevant federal legislation in Austria92 for instance for indirect discrimination claims to be grounded

88 [2004] EWCA Civ 1540 [26] 89 See s 6(3) 90 Roads v Central Trains [2004] EWCA Civ 1540 [26] 91 EqA s 20(4) and (5) 92 Disability Equality Act 2005 s 5

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December 2011 Disability and Employment in the EqA

379

on disadvantage arising from physical and design features as well as from provisions criteria and practices

It will be interesting to observe how indirect disability discrimination and anticipatory reasonable adjustment develop There is certainly scope for tremendous overlap between them in those areas of the EqA in which they both operate93 Indeed the value of introducing indirect discrimination into these areas of the EqA is somewhat questionable The addition of indirect discrimination to the employment provisions where there is no anticipatory reasonable adjustment duty is however to be welcomed It injects a degree of recognition of the group dimension of disability discrimination Further extending indirect discrimination to disability creates more consistency between disability and other protected characteristics Nevertheless the decision to retain the anticipatory reasonable adjustment duty in other parts of the Act but not to extend it to employment is puzzling Indeed disabled employees and applicants might have been better served by such an extension of the anticipatory reasonable adjustment duty than by the introduction of indirect discrimination

C Public Sector Equality Duty

The final generic measure to be considered here is the public sector equality duty introduced by section 149 of the EqA In this section however it is not the implications of the general duty that will be considered but the implications of the specific duties which accompany it

The DDArsquos general disability equality duty was supplemented by specific duties which required public sector bodies to draw up and publish disability equality schemes94 Unlike the specific duties applying to race and gender there was also a requirement that disability equality schemes should be drawn up with the involvement of disabled people who had an interest in the organisationrsquos performance of its functions

Securing meaningful involvement is a process which takes time and care95 Useful guidance on implementing the involvement requirement of

93 A point recognised in Equality Act 2010 Code of Practice above n83 paras 537ndash540 94 Disability Discrimination (Public Authorities) (Statutory Duties) Regulations 2005 95 For an interesting discussion of the difficulties that have been encountered elsewhere see T Mladenov lsquoInstitutional Woes of Participation Bulgarian Disabled Peoplersquos Organisations and Policy-Makingrsquo (2009) 24 Disability amp Society 33

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Industrial Law Journal Volume 40

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the specific duty was issued by the Disability Rights Commission96 Unlike consultation involvement requires collaboration on an on-going basis It may also require an element of capacity building and the investment of effort and resources to ensure the participation of people often excluded or silenced Recognition of its importance is however at the very heart of the international and European disability movements which have united behind the slogan of lsquonothing about us without usrsquo97

The specific disability equality dutyrsquos involvement requirement was widely recognised to be an lsquoimportant and potentially radical step in the promotion of equality and citizenship for disabled peoplersquo98 Its implementation was patchy and inconsistent but evidence was emerging of good (as well as bad) practice and of its transformative potential99 There were calls for implementation efforts to be increased by the intensification of regulatory activity by the EHRC100

The former specific equality duty however is to be replaced in England by duties which the Coalition Government claim will free public sector organisations from the unnecessary burdens of bureaucratic process101 The implications of these changes are explored more fully by Sandra Fredman elsewhere in this volume For present purposes however it should be noted that there will be no obligation to draw up general equality schemes and that no involvement or even consultation obligation accompanies the duty to identify equality objectives

The abandonment of the involvement requirement together with other aspects of the proposed change has been greeted with dismay by campaigners for disability equality102 The dismissal of the involvement requirement as

96 Disability Rights Commission Doing the Duty An Overview of the Disability Equality DutymdashStatutory Code of Practice for England and Wales (London DRC 2005) 97 For a thought-provoking account of the tactics and challenges of the international disability movement in the process leading to the CRPD see S Tromel lsquoA Personal Perspective on the Drafting History of the United Nations Convention on the Rights of Persons with Disabilitiesrsquo in G Quinn and L Waddington (eds) European Yearbook of Disability Law (Antwerp Intersentia 2009) 115 98 C Pearson et al lsquoDonrsquot Get Involved An Examination of How Public Sector Organisations in England Are Involving Disabled People in the Disability Equality Dutyrsquo (2011) 26 Disability and Society 255 266 99 Ibid 100 Ibid 101 The EqA (Specific Duties) Regulations 2011 laid before Parliament on 27 June 2011 and accompanying Written Ministerial Statement 28 June 2011 by Lynne Featherstone and Baroness Verma of Leicester 102 C Gooding lsquoWill the New Equality Duty Deliver Progress for Disabled Peoplersquo (keynote presentation delivered at the Lancaster Disability Studies Conference September 2010)

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December 2011 Disability and Employment in the EqA

381

mere unnecessary bureaucracy takes insufficient account of the importance of process in shaping outcome The importance of process and involvement is enshrined in the CRPD which was itself the product of a process built on involvement and collaboration Article 4(3) of that convention requires that

3 In the development and implementation of legislation and policies to implement the present Convention and in other decision-making processes concerning issues relating to persons with disabilities States Parties shall closely consult with and actively involve persons with disabilities including children with disabilities through their representative organizations

It is at least arguable that the changes being made to the specific duties represent a giant step backward from this obligation

4 CONCLUSIONS

The EqA has changed the landscape of equality law in Britain As regards disability it has introduced many much-needed changes of a fairly minor nature which inject a greater degree of consistency and simplicity into the law Examples of this type of change are those concerning the trigger for the reasonable adjustment duty and the justification defence for discrimination arising from disability These changes represent opportunities usefully seized

Other opportunities to improve disability equality law which the EqA has seized concern changes of a more substantive nature These include the introduction of discrimination arising from disability which essentially restores the law to its pre-Lewisham v Malcolm103 state the introduction of a general prohibition of pre-employment health checks the introduction of potential claims for direct disability discrimination by perception and the extension of indirect discrimination to the disability arena All these changes have the potential to be considerable improvements on the previous law However discrimination by perception is likely to pose particular problems in the disability context and the opportunity to minimise such difficulties through the provision of clear guidance has to date been missed Further while the arrival of indirect disability discrimination in the employment sphere is a considerable improvement on the previous approach it is a pity that the opportunity was not seized to

103 [2008] UKHL 43

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Industrial Law Journal Volume 40

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reflect more carefully on the relationship between indirect discrimination and anticipatory reasonable adjustment and on the possibility of extending the latter into employment

Despite these positive instances of opportunities seized significant opportunities have also been missed Foremost amongst these missed opportunities is the failure to reform the definition of disability by abandoning the requirement that an impairment has substantial and long-term effects Until this is done British disability equality law will not truly have grown up It is to be hoped that another opportunity to consider this issue will present itself in the near future and that this time it will be seized

The other significant opportunity which has been lost was the opportunity to build on the disability equality duty and its accompanying specific duty to enhance and embed the involvement of disabled people in the equality planning processes of public sector bodies Without an obligation to involve disabled people and with the message that it amounts to unnecessary bureaucracy those public bodies which have begun to develop involvement processes and structures are likely to abandon them The loss of this opportunity it should be remembered is also the loss of what was an lsquoimportant and potentially radical step in the promotion of equality and citizenship for disabled peoplersquo104

In addition to these opportunities seized and lost the EqArsquos treatment of disability has itself generated opportunities Before the EqA the question of how to achieve harmonisation tended to be approached from the perspective of whether disability-specific approaches could be adapted so as to fit into the harmonised structure for other protected characteristics There was very little debate about whether the law on other protected characteristics should be amended so as to bring it into line with that applying to disability Under the EqA disability-specific measures include discrimination arising from disability reasonable adjustment duties and pre-employment health checks All appear to have the potential to benefit protected characteristics other than disability The EqA by presenting the existence of disability-specific approaches so starkly generates opportunities for on-going discussion from the perspective of whether the law applicable to other protected characteristics could be brought into line with the more proactive and disadvantage-focused disability-specific measures

The CRPD provides a useful lens through which to view domestic disability equality law Both of the major opportunities missed or lost

104 lsquoDonrsquot Get Involvedrsquo above n98 266

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December 2011 Disability and Employment in the EqA

383

identified above raise questions about CRPD compliance Further the CRPD demands that when assessing the situation of disabled people disability equality law should not be examined in isolation from other laws policies and practices The need to prohibit discrimination is only one of a wide range of obligations which it imposes on States The purpose of this analysis has been to subject the EqArsquos employment provisions to a critical evaluation from a disability perspective and the exclusive focus has therefore been the EqA However it should be stressed that the power of the EqA to contribute to improving the lives of disabled people is dependent on the general policy and social context within which it operates Its effectiveness is dependent on disabled people employers and others being aware of its existence and its requirements Its message that employers are responsible for making adjustments where reasonable to place disabled workers on a level playing field with their peers is dependent on positive portrayals of disabled people by government and the media and is undermined by images of them as lsquowork-shyrsquo or as lsquoscroungersrsquo105 The full inclusion of disabled people in employment is also dependent on access to education to housing to transport to healthcare and very often to support with daily living activities106 There is great concern amongst disabled people that public spending cuts will jeopardise their access to all of these107

105 House of Commons Work and Pensions Committee Sixth Report The Role of Incapacity Benefit Reassessment in Helping Claimants into Employment (London Stationery Office 2011) paras 36ndash41 See also the letter of 27 July 2011 from the Chair of the Work and Pensions Committee Dame Anne Begg to the Minister for Employment Chris Grayling expressing serious concern about the on-going media misrepresentation of disabled people and benefit claimantsmdashavailable at httpwwwparliamentukbusinesscommitteescommittees-a-zcommons-selectwork-and-pensions-committeenewsletter-to-chris-grayling-benefit-payment-statistics (date last accessed 18 October 2011) 106 See generally Working Futures above n13 107 See eg the Disabled People Against the Cuts website at httpwwwdpacuknet (date last accessed 18 October 2011) and Papworth Trust Government Cuts Will Push Disabled People Further into Poverty 31 August 2011

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