One issue that strikes me looking at the provisions on disability discrimination is that the current system that basically allows positive discrimination by default because you need to be disabled to bring a claim will go. The first point is that direct discrimination is less favourable treatment because of a ‘protected characteristic’. Disability is defined as a protected characteristic – but it is clear that the person claiming does not need to be disabled. That means that if I were to recruit someone because they were disabled that would amount to direct discrimination under Clause 13 against the non-disabled job applicant.
The explanatory notes to the Bill suggest that positive discrimination on grounds of disability will still be lawful because of Clause 13(3) which provides that it is not disability discrimination if there is more favourable treatment of a disabled person. But that is only where the treatment complained about is ‘permitted by or under’ the Bill. Surely that is not a blanket exception, but rather a reference to reasonable adjustments – which are a form of positive discrimination.
Beyond reasonable adjustments, for positive discrimination in the field of recruitment to be lawful it must fall within Clause 153. This allows an employer to discriminate in recruitment in favour of A and against B if people who share B’s protected characteristic are at a disadvantage or underrepresented. However Clause 153 only allows discrimination if A is ‘as qualified as’ B to be recruited or promoted.
Under the two-tick system for recruiting disabled people, someone who meets the minimum requirements for the job will be given an interview. However it is quite possible for someone who is actually better qualified than the disabled person not to be shortlisted. As I understand it (and maybe I’ve missed something) this would be unlawful discrimination under the new Bill.
There is still a long way to go and this position may well change. In the meantime I have A’s and B’s spinning round my head – the Bill is full of them. A song from the Mikado keeps coming to mind
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