Soon the Equality Act 2010 will replace the Disability Discrimination Act. Allan Tyrer outlines some of the changes in the new legislation.
Disability discrimination law in Great Britain will soon be governed by the Equality Act 2010, which managed to get on the statute book just before Parliament was dissolved for the General Election. Most of the Act is expected to come into force in October 2010. It covers not just disability but also the other discrimination grounds, such as sex, race, and religion.
The definition of 'disability' stays essentially the same as before, so far as relevant to stammering, and a stammer should often meet the definition. Very broadly, the test is whether the stammer has more than a minor or trivial effect in normal day-to-day activities.
However, the Equality Act will make some important changes. One is to remedy the effects of a House of Lords decision called Malcolm v London Borough of Lewisham. This case makes it often more difficult to claim for 'less favourable treatment' related to disability. To get round this, many people at the moment are seeking to frame their claims as breach of the duty to make reasonable adjustments, or as harassment. The Equality Act is intended to again widen the scope to make a claim.
Another major change is to the justification defence. For some types of claim there is still no justification defence. However, where the defence is available, it will not be as easy as before for an employer to show his actions are justified. The new defence is based on European law and already applies in other areas such as sex discrimination. Very broadly, the question will be whether what the employer did (e.g. turn someone down for a job for a stammering-related reason) was a proportionate means of achieving a legitimate aim.
In the draft Employment Code of Practice issued for consultation by the Equality and Human Rights Commission (EHRC), the main example of a 'legitimate aim' relates to speech. The Code says: "If communicating with people on the telephone was the main part of a job, ensuring that callers could easily understand the person doing this work would be a legitimate aim as there would be a real need for clear speech." A person may communicate dysfluently but clearly, and reasonable adjustments may be possible. However, we are concerned that this example may be misinterpreted by employers as giving grounds for discriminating against people who stammer. BSA has therefore expressed its concern on this to the EHRC in a response to the consultation.
This new justification defence will apply also to others subject to the Equality Act, such as service providers (shops, banks, public services etc). As regards service providers it may be somewhat easier than at present for them to satisfy the new test, but we will need to see how case law develops. Also they (like employers and others) are subject to other duties which do not use that test, such as the requirement to make reasonable adjustments.
In BSA's experience, an increasing problem is the use of voice recognition telephone systems, which are often inaccessible to people who stammer. We have requested that an example be included on this in the 'Services' Code of Practice, based on the experience of a member who was unable to get through on the phone to her local NHS hospital because the switchboard had been 'upgraded' to a voice recognition system.
One new provision in the Equality Act which has been hailed as an important change discourages recruiters from asking job candidates about health and disability before making a job offer. However, there are various exceptions to this, and I am not sure at present how far it will make an important difference in relation to stammering. At the time of writing, the Code of Practice on it is not yet available.
The Equality Act makes numerous other changes to the law. I wouldn't say it makes disability discrimination law simpler, rather the reverse. However, many of the new provisions are helpful. The implications of the Act will need to be developed by the tribunals over the next few years.
This article is only intended as a general summary and is not a substitute for appropriate professional advice in any individual case.
From Speaking Out Summer 2010, page 10