Equality Bill – disability discrimination

Another thought on the Equality Bill’s provisions on disability discrimination. Clause 14 of the Bill is designed to address the House of Lords’ judgment in Lewisham v Malcolm which essentially rendered the current definition of ‘disability related’ discrimination meaningless.

But I have been staring at Clause 14 for 2 days now – and the fact is, it doesn’t make any sense.

Clause 14(1) says this:

(1) A person (A) discriminates against a disabled person (B) if—

(a) A treats B in a particular way,
(b) because of B’s disability, the treatment amounts to a detriment, and
(c) A cannot show that the treatment is a proportionate means of achieving
a legitimate aim.

Note that the focus is not on the reason for the treatment as one might expect in a discrimination provision, but on the reason that the treatment amounts to a detriment. The treatment must amount to a detriment because of B’s disability. That means, surely, that if the treatment would amount to a detriment whether or not B was disabled, then the treatment will not amount to discrimination withing the meaning of the clause.

That means that inherently detrimental treatment cannot be discrimination under this clause. Is that what the Government intends? One of the examples in the explanatory notes says that if a restaurant ejected a diner who was eating messily because of a disability that could amount to discrimination. But a diner who is expelled will suffer a detriment whether he or she is disabled or not. The disability is not the reason that the treatment is a detriment and so clause 14 can’t apply. In the employment sphere the same would apply to a dismissal for disability related absence. If the treatment is dismissal then clause 14 would not apply because the fact that the employee is disabled is not the reason that the treatment amounts to a detriment.

As I read it clause 14 would only apply to apparently neutral treatment that is a detriment when applied to the claimant because of his or her disability. If I instruct an employee to climb a ladder or use non-adapted equipment that might amount to a detriment depending on the disability that the employee has.

In that sort of situation however, the duty to make reasonable adjustments would apply in any event. So, come to think of it, would indirect discrimination under Clause 18. So what is Clause 14 actually for?

I have a feeling that all sorts of issues like this lie lurking in the Bill somewhere. Its parliamentary passage might prove tricky.