Women and Equality Unit

David Skelton

Vice President.

Kate Hepher

Discrimination Law Review Team

Women and Equality Unit

Communities and Local Government

Zone C1, 2nd Floor Ashdown House
123 Victoria Street
London
SW1E 6DE

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Introduction

1. The Access Association welcomes the opportunity to comment on the Green Paper – Discrimination Law Review “A Framework for Fairness: Proposals for a Single Equality Bill for Great Britain”.

The Access Association's aim is to improve access and facilities for disabled people and consequently for all people whom would benefit from an accessible environment.

The Access Association was formed in response to the need to network and support professionals, whose primary responsibility was to promote and facilitate accessible environments and services for all, including people with disabilities. Members are working in

· local authorities

· voluntary sector organisations

· private sector organisations.

4. The Association is committed to ensuring equal opportunities for all Members.

5 What do we do?

· Support existing Access Professionals and Access Officers.

· Promote the appointment of Access Professionals in Local Authorities.

· Support Access Professionals in their role of consulting disabled people in their communities.

· Liaise with Access Groups, or in establishing such Groups where they do not already exist.

· Exchange knowledge and experience amongst Members.

· Encourage the education and training of Members in access matters.

· Monitor and ascertain the effectiveness of current guidance, legislation, practices and policies.

· Act as advisors in technical matters to organisations and individuals.

Put forward the views of the Association to the Media, Government departments, Local Government Associations.

Your response form is set out below with our views.

Name / David Skelton
Organisation (if applicable) /

Access Association

Address / c/o Merseytravel,
24 Hatton Garden,
Liverpool,
Liverpool,
Postcode / L3 2AN

Confidentiality

The Access Association is happy for its views to be made public.

You or your organisation

Q(i) In what capacity are you responding?

On behalf of an organisation (if so, please go to Q(ii) below)

Other (please specify)

Q(ii) Is your organisation

(please tick the boxes that apply to your organisation)

A professional association

Proposals for a Single Equality Bill for Great Britain

The main consultation document addresses various proposals and options for changing discrimination law in order to create a clearer, more streamlined equality legislative framework, which produces better outcomes for those who currently experience disadvantage. The following questions are reproduced from the main document, in the order and with the same numbering in which they appear there. In addition, you are asked for your comments generally on the estimated provisional costs and benefits, as shown in the Initial Regulatory Impact Assessment and the Equality Impact Assessment.

Part 1 – Simplifying the law

Chapter 1: Simplifying Definitions, Tests and Exceptions and Promoting Compliance

Simplifying Definitions and Tests

Direct Discrimination

Q1 Do you have any comments on our intention to keep the existing requirement for a comparator in direct discrimination claims?

Yes / ü

Q2 Do you have any comments on our proposal to replace the separate definitions of discrimination in Part 3 of the Disability Discrimination Act with a single definition?

Yes ü

The Association believes we should be moving away from protecting a group of ‘disabled’ people based on the current medical model towards protecting anyone who is experiencing discrimination on the grounds of a past, present, or reputed impairment.
It is our view that regardless of whether a person fits within one of the strands as set out in previous legislation if they have been discriminated against because someone thought they were Old, Black, Disabled, etc then they should be protected by the Single Equality Bill.

Q3 Do you agree that we should largely keep the existing approach in relation to discrimination on the basis of perception and association, except for an extension to protect against discrimination on the grounds of association with transsexual people?

Please provide:

The legislation should not discriminate within any equality strand and therefore protection in relation to discrimination on the basis of perception and association should be extended to all strands. Further we would like to see the new law extending beyond transsexual people to transgender people.

Indirect Discrimination

Q4 Do you agree with our proposal to extend indirect discrimination to cover gender reassignment but not explicitly introduce it to disability discrimination law?

Please say why:

We agree that indirect discrimination on the grounds of gender reassignment should be banned, however, this should be included within the EU Gender Directive. It is unclear why it should not be extended into disability discrimination law.

Definition of indirect discrimination

Q5 Do you agree with our proposal to harmonize the definition of indirect discrimination where it applies across the protected grounds?

Yes

Objective Justification

Q6 Do you agree with our proposal to harmonize the objective justification test?

Yes

Justification of disability discrimination

Q7 Do you agree that there should be a single test of objective justification for disability discrimination in employment and vocational training, goods, facilities and services, housing, education, private clubs and public functions?

Yes

Consultation, and work developed around the disability equality schemes in Merseyside, for example, and work developed prior to this would suggest this is a difficult balance to strike and in particular highlighted the need for employers and businesses to significantly increase access for disabled people. The Access Association would therefore stress the need for very clear guidance around this test that supports disabled people in playing a full role in the work and leisure activities in any area. The test should not be set up so employers/ businesses can do the least they can to comply with the law and this will just continue the exclusion of disabled people from the leisure and work life of any area.
The test should be did the employer, training establishment, supplier or goods and services, Housing supplier, Education establishment, Private Club or Public Authority or any of its employees, discriminate against a person on the grounds that they believed that that person had, or had previously had, a disability and provide means of redress regardless of whether the person fits the description of a disabled person set out in part two of the Disability Discrimination Act.

The threshold for reasonable adjustments

Q8 Do you have any comments on our proposal to establish a single threshold for the point at which the duty to make adjustments is triggered?

Yes ü

Please provide:

We would support this provided the changes in the threshold tightens the legislation and is not used to weaken disabled persons rights under this part of the legislation.

Victimisation

Q9 Do you agree that the approach to victimisation in discrimination law should be aligned with the employment law approach?

Yes

Simplifying Exceptions

Genuine occupational requirement test

Q10 Do you agree that a genuine occupational requirement test should be introduced for all grounds of discrimination, with the exception of disability (where it is not necessary)?

Yes

Q11 Do you think there is a need to retain any of the genuine occupational qualifications listed in the Sex Discrimination and Race Relations Acts?

Yes

Genuine service requirement test

Q12 Do you support or oppose the introduction of a genuine service requirement test for differentiation in the provision of goods, facilities or services, housing and the exercise of public functions?

Support

Specific Exceptions

Q13 Do you agree with the proposal for a unified approach where exceptions apply to more than one protected ground, where this is appropriate?

Yes

Q14 Do you have any comments on our proposals for retaining the specific exceptions set out in Table 1 in Annex A?

No ü

Q15 Do you agree that the exceptions listed in Table 2 in Annex A should be removed?

Yes

Q16 Is there any need to return an exception to allow insurers to treat people differently on the grounds of sexual orientation, where supported by sound actuarial evidence, beyond the end of 2008?

No ü

Chapter 2: Public Functions

Q17 Do you agree that there would be benefits in adopting a harmonised approach to the goods, facilities and services and public functions provisions are structured across all protected grounds?

Yes

Q18 Do you think the exceptions could be streamlined in this area or do you think that there are any exceptions that should apply to public authorities that it would not be appropriate to apply to the provision of goods, facilities or services by private bodies?

Please say why:

The public sector is increasingly procuring services from the private sector, who are then acting as a pseudo public body. Private sector organisations providing statutory public services should, therefore, also be covered by the same legislation as the public sector.

Chapter 3: Equal Pay

Q19 Do you agree that the distinction should be retained?

Yes

Please say why

Despite 30 years of individual legal rights to sex equality, there is still widespread pay inequality and therefore the light touch approach has not worked, arguing that the system has evolved over a long period with no deliberate discriminatory intent is not acceptable.

Q20 Do you consider there are further areas of the law of equal pay developed by case law, which it would be helpful to codify?

Please give details of these areas of legislation and any case law relevant to these

The Association does not have a view on this.

Q21 Do you have further suggestions on how we could simplify equal pay legislation or make it easier to work in practice?

Q22 Do you agree that allowing the use of hypothetical comparators would be unlikely to give any benefit in practice.

Please explain

The European Court of Justice has ruled that an actual comparator is required, therefore, for consistency the proposed legislation should reflect this.

Part 2: More effective law

Chapter 4: Balancing Measures

Q23 What evidence is there of the extent to which the current “positive action” provisions are being used? Do you consider that the current provisions limit the actions that employers and others would like to take?

Our experience is mainly with Public Body employers and service providers many of whom have to be driven by targets before they will take any form of positive action.
The Access Association supports the need to bring equal pay law under the umbrella of the Single Equality Bill. It is important to ensure this is supported by clear guidance on how to develop an equal pay process that works with employers to enable them to meet their duties under equal pay. This work needs to recognise that equal pay is only part of the work required to narrow the gender pay gap and ensuring that employers understand the distinction as developing work on the gender pay gap was a clear part of Public Authorities gender equality schemes.

Q24 Do you agree that it would be helpful for organisations seeking to make progress towards their goals of tackling under-representation and disadvantage to be able to use a wider range of voluntary balancing measures?

Yes

Q25 Do you agree that measures to meet special needs in relation to education, training or welfare or any ancillary benefits should be permitted in respect of all protected groups?

Yes

Please explain why:

Generations of disabled people have been failed by special education establishments, which failed to educate. For many education, and the chance to realise their potential, was postponed until, they had been discarded by such establishments at 15, 16 or 18, and were able to pursue courses in further education colleges. Many disabled people have abilities, which they are not allowed to demonstrate for lack of formal qualifications.

Q26 Do you agree with these proposals for issuing of guidance by the Commission for Equality and Human Rights, but that the Commission should not have a role approving positive action programmes?

Please explain why:

We believe the CEHR should issue guidance on positive action programmes, such as education and training programmes, which equip people from any of the strands to develop their careers. There should be performance indicators relative to positive action programmes which the Audit Commission should monitor. The private sector should be expected to build positive action programmes into their Corporate Responsibility schemes.

Q27 Do you agree that we should have a power to continue the operation of the current provision beyond 2015, if this is still necessary and proportionate?

Yes

Please explain why:

The Government has set a target of achieving disability equality by 2025. It is essential that current provisions be maintained until equality is achieved.

Q28 Do you agree that we should widen the scope of voluntary positive measures for political parties to target the selection of candidates beyond gender?

Yes

The Access Association would support the widening of the scope of voluntary positive measures for political parties beyond gender.

Chapter 5: Public Sector Equality Duties

Q29 Do you agree that the race, disability and gender duties should be replaced by a single duty on public authorities to promote race, disability and gender equality?

Yes

Please state your reasons:

The single duty should be extended to include all the equality strands. As stated in the document a growing proportion of public bodies already have single schemes. Also other Authorities pursuing the Equality Standard for Local Government have to take all equality strands into account.

Q30 Do you agree that it would be helpful to provide a clear statement of the purpose of a single public sector duty which public authorities should use as a foundation for taking action to promote equality and good relations?

Yes

Please state your reasons:

It will ensure that Public Bodies are working to a consistent guideline and therefore are compatible with one another. Also if the proposal to remove the duty to mainstream equality to proportionate action towards the achievement of priority objectives will require a clear statement of the purpose.

Q31 Do you agree with the four areas set out in the proposed statement of purpose?