Disability equality legislation in NI is inconsistent and needs to be simplified and strengthened
We recommend urgent changes to address the following provisions across the scope of the disability equality legislation:
Prohibit direct discrimination which cannot be justified
Prohibit direct discrimination against disabled people when accessing goods and services and provide stronger protection for disabled pupils in schools.
Remove the justification defence for a failure to make a reasonable adjustment
We are of the view that if it is reasonable for a service provider to make an adjustment, then it should not be permissible to justify their failure to make that adjustment.
Introduce a single threshold for making reasonable adjustments
Currently there is no single threshold for making reasonable adjustments. We recommend that everyone with responsibilities under the disability equality legislation, are placed under a duty to make a reasonable adjustment where a disabled person would be placed at a substantial disadvantage, compared with non-disabled people, if no adjustment was made.
Our recommendations reflect legislative changes which were implemented in Great Britain under the Equality Act 2010.
Improve protection for disabled people against indirect discrimination and discrimination
We recommend improving the protection for disabled people against indirect discrimination and discrimination arising from disability. In the case of Mayor and Burgesses of the London Borough of Lewisham -v- Malcolm
(June 2008), the House of Lords’ decision compared the disabled person to an appropriate comparator, such as a non-disabled person, or a person with other disabilities.
Catherine Casserley of Cloisters advises on the judgement and impact of the Malcolm decision on disability law:
Strengthened legislation will address the impact of this decision of replacing broader disability related discrimination with direct discrimination.
Remove the ‘list of capacities’ to make it easier for disabled people to fall within the definition of disability
Remove the ‘list of capacities’ to make it easier for disabled people to fall within the definition of disability. Current disability equality legislation defines a disabled person as:
‘a person with a physical or mental impairment which has a substantial and long term adverse effect on a person’s ability to carry out normal day-to-day activities’.
It also states that impairment is to be taken to affect the ability of a person to carry out normal day-to-day activities. Below is the ‘list of capacities’ for defining normal day-to-day activities:
Mobility – moving from place to place
Manual dexterity – use of hands, wrists or fingers
Ability to lift, carry or otherwise move ordinary objects
Speech, hearing or eyesight
Memory or ability to concentrate
Ability to learn or understand
Ability to recognise the risk of physical danger
Taking part in normal social interaction
Forming social relationships
The removal of the list of capacities will ensure the definition of disability is in line with legislation implemented in Great Britain.
Protection for disabled people from harassment should be extended to include accessing goods, services and private clubs
We recommend that protection for disabled people from harassment should be extended to include accessing goods, services and private clubs. Currently disabled people are only protected from harassment in employment and the provision of further and higher education.
Extend protection from direct discrimination or harassment to carers, friends or family members of disabled people
We recommend extending protection from direct discrimination or harassment to carers, friends or family members of disabled people.
People who are associated with a disabled person should not be harassed or subjected to direct discrimination because of their association with a disabled person. Additionally, people who are wrongly perceived to be disabled and are subjected to direct discrimination or harassment should have protection under disability equality legislation.
Remove disability or health related questions from job applications
We recommend the removal of disability or health related questions from job applications. This includes asking questions as part of the application process and during interview.
Questions of this nature can deter disabled people from applying for jobs and their removal from the application process will ensure disabled applicants can be assessed solely on their ability to do the job.
An additional duty on schools to provide auxiliary aids and services for disabled pupils
We recommend an additional duty on schools to provide auxiliary aids and services for disabled pupils. Where reasonable, changes to the Special Educational Needs and Disability (NI) Order 2005 will ensure a disabled pupil is not put at a substantial disadvantage compared to a non-disabled pupil.
Provision of auxiliary aids or services would be of benefit to disabled pupils who do not have a special educational need but have a requirement for reasonable adjustments. This for example could include extra support or the provision of an adapted computer keyboard.
A duty on landlords to make reasonable adjustments to physical features in common parts of residential premises
We recommend a duty on landlords to make reasonable adjustments to physical features in common parts of residential premises. This change will ensure that if a landlord receives a request to make a reasonable adjustment he must consider and make any necessary changes to ensure the disabled tenant is not put at a substantial disadvantage.
Download our disability law reform recommendations: