What changes to the law are required?
Our proposals include recommendations for change in relation to the Disability Discrimination Act 1995 and the Special Educational Needs and Disability (Northern Ireland) Order 2005.
The Disability Discrimination Act 1995 (DDA 1995) prohibits discrimination against disabled people in employment and when accessing goods and services, including public transport. It also gives protection to disabled people against discrimination when accessing private clubs (such as golf clubs), buying or renting premises, and when subject to the functions of public bodies, such as the police.
The Special Educational Needs and Disability (Northern Ireland) Order 2005 makes it unlawful for schools to treat disabled pupils and prospective pupils less favourably than other pupils in all aspects of school life. It also provides protection against discrimination for disabled students and prospective students in further and higher education. In addition, it makes it unlawful for general qualifications bodies (such as the CCEA) to discriminate against disabled pupils when awarding certain qualifications, including GCSEs, GCEs, etc.
In summary, we recommend the following key changes to disability equality legislation:
- the disability legislation is harmonised, simplified and strengthened, so that there is a uniform set of definitions of discrimination and other provisions across the scope of the legislation;
- the definition of disability is amended so as to remove the list of capacities from the definition; thereby making it easier for disabled people to fall within the definition of disability;
- disabled people have protection against indirect disability discrimination and discrimination arising from disability; thus addressing the impact of the House of Lords’ decision in June 2008 in the case of Mayor and Burgesses of the London Borough of Lewisham v Malcolm (Malcolm)1
- there is increased protection for disabled people from harassment related to their disability when accessing goods and services, or private clubs;
- there is express protection for people, such as carers, friends or family members, who are subjected to direct discrimination or harassment because of their association with a disabled person, or because they are wrongly perceived to be disabled;
- questions by employers related to disability and health before a job offer is made are prohibited, except in specified circumstances;
- there is an additional duty on schools to provide auxiliary aids and services for disabled pupils, where reasonable;
- disabled tenants who live in rented residential accommodation are given additional protection in relation to the making of reasonable adjustments by landlords to common parts (such as an entrance hall in a block of flats).
Why are these changes required?
In summary, the recommended changes will:
- help address the key inequalities facing disabled people in Northern Ireland, as highlighted in the Equality Commission’s Statement on Key Inequalities in Northern Ireland2
- ensure the disability legislation is harmonised, simplified and strengthened across the legislation, thereby ensuring consistent levels of protection making it easier for disabled people to understand their rights, and for employers, service providers, schools and others to comply with their responsibilities under the legislation
- ensure that Northern Ireland disability equality legislation keeps pace with changes in legislation which have already taken place in Great Britain in October 2010 or are due to be implemented3
1 Mayor and Burgesses of the London Borough of Lewisham v Malcolm (2008, UKHL43)
- help ensure that Northern Ireland disability equality legislation complies with the anticipated requirements of the draft European Commission Directive on the provision of goods and services4. The Equality Commission in our joint role with the NI Human Rights Commission as the Independent Mechanism for NI, further considers that the changes are in keeping with the UK Government’s international obligations under the UN Convention on the Rights of Persons with Disabilities (UNCRPD)5.
2 Statement on Key Inequalities in Northern Ireland (ECNI, Oct 2007)
3 It is important to note that the UK Government is still considering some provisions, for example, the additional duty on schools to provide auxiliary aids and services for disabled pupils, where reasonable, and increased requirements on landlords as regards making reasonable adjustments to common parts for disabled tenants, and there is no specific implementation date as yet.
4 Draft Council Directive on implementing the principle of equal treatment between persons irrespective of religion or belief, disability, age or sexual orientation (July 2008, COM (2008) 0426)
5 Further information on the UN Convention