Reform of disability law needed, says House of Lords report

Class actions, new code on reasonable adjustments, and dual discrimination claims are among recommendations

“Rights which are unenforceable are not worth having” according to the House of Lords Select Committee on the Equality Act 2010 and Disability. In its recent report it accuses the government of failing to protect disabled people’s rights both at work and more widely in society.

While the report’s impact has been somewhat overshadowed by a rash of other reports over the last few weeks – including those on female board progression, on women in financial services, and on the gender pay gap – it does reveal some stark findings.

There are estimated to be 11.6 million disabled people in the UK, of whom 5.7 million are working age adults. Many disabled people believe that combining disability legislation with other forms of discrimination protection has not worked in their favour and that disability was easier to manage under the standalone Disability Discrimination Act 1995 overseen by the Disability Rights Commission, rather than under the single Equality Act 2010 and the unified Equality and Human Rights Commission (EHRC).

But, recognising that this position cannot now be reversed, the report focuses on what more can be done by employers, public bodies and service providers to address the needs of disabled people across the UK. It identifies five key themes:

  • Reasonable adjustments should to be at the forefront when planning services and buildings (on the basis that as medical advances lead to an ageing population, disability is an inevitability for everyone and so should be planned for from the outset)
  • Businesses, public bodies and service providers should take a more proactive approach to disability, tackling likely issues upfront rather than waiting for them to happen
  • Communication and engagement with disabled people should be improved as this will significantly increase the chances of meeting their needs more effectively
  • Legislation, courts and tribunals need to change so that disabled people can enforce their rights properly (at present the onus is on them to hold employers and service providers to account)
  • Government bears ultimate responsibility for disabled people, and must structure itself so that it can discharge that responsibility properly.

The report makes many recommendations, some of which are relevant to employers. It accepts that many employers and service providers have difficulties with the ‘reasonable adjustments’ requirement and recommends that the EHRC should produce a specific code of practice, as well as industry-specific guidance, on this aspect of the law.

It suggests there should be more awareness of carers’ rights: the carers of disabled people should be reminded of their rights, and employers should be encouraged to respond positively to flexible working requests from them.

The report also says there should be more effective legal tools to help disabled people enforce their rights. It suggests re-introducing the statutory discrimination questionnaires which were removed in 2014 by the Enterprise and Regulatory Reform Act 2013, and bringing back the power for tribunals to make recommendations to benefit those other than the claimant in a tribunal claim (this right was removed in October 2015). In addition, because many disabled employees have other protected characteristics, it recommends that provisions in the Equality Act should be brought into force that would allow employees to claim dual discrimination.

The report also addresses the deterrent effect of tribunal fees, calling for proper account to be taken of the “strong evidence that tribunal fees are unfairly obstructing discrimination claims under the Equality Act”. And it says that one way to advance the rights of disabled people more generally would be for representative bodies to be able to pursue actions in the interest of classes of disabled people who are not themselves claimants – in other words, allowing ‘class actions’ to be brought.

Clearly a number of these suggestions have implications for employers if they are pushed through and it remains to be seen just how many of them will be put in place. However, given the forceful nature of the report, and the reality of an ageing working population, it is likely that some will gain traction. Employers should think about their existing approach to managing disability in the workplace and consider whether any of their current policies and practices need revisiting.


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