Equality Bill

My Lords, the proposed new clause under Amendment 7 and similarly veined Amendments 21A, 24, 38 and 54 are variants on an amendment which was debated in Committee in the other place. In resisting that amendment, my honourable friend the Solicitor-General highlighted the danger that if the Bill were to refer expressly to association and perception, by implication Clause 13 could be misinterpreted as excluding or devaluing other forms of discrimination. In fact, as well as discrimination based on association and perception, the definition of direct discrimination in Clause 13 is broad enough to cover, for example, cases of less favourable treatment because of a refusal to comply with instructions to discriminate. There are other reasons why the Government resist the proposed new clause and Amendment 21A. I turn now to the question raised by the noble Baroness, Lady Warsi, about whether it would be better to have this in the Bill. The Bill refers to discrimination because of a protected characteristic, not because of the protected characteristic of the claimant. The key issue is the reason for the less favourable treatment. If the reason is disability, it would be disability discrimination, whether or not the victim is actually disabled. The Bill clearly provides for that, to which I shall return in a moment. The word "association" inevitably invites a potentially confusing debate about what is meant by that word. In his recent judgment in the case referred to by the noble Baroness, Lady Warsi—Attridge and Coleman, which was handed down on 30 October 2009—the president of the Employment Appeal Tribunal reformulated the Disability Discrimination Act’s definition of direct discrimination without using the language of "association". He preferred to, ""avoid language which encourages [employment] tribunals to become bogged down in discussion of what does or does not amount to an ‘association’, when that should not be the focus of the enquiry"." What matters is that A has treated B less favourably because of a protected characteristic, and the fact that the characteristic in question is not B’s own is not of the essence. That is clear from the judgment of the European Court of Justice in the Coleman case. We believe that we have addressed association, but Amendment 24 would explicitly confer protection from direct discrimination on those who are treated less favourably because they are "perceived", rightly or wrongly, to have a disability. It could also, in relation to Clause 13(3), explicitly protect, for example, a service provider who treats a person they wrongly perceive to be disabled more favourably than another, who then takes action against the service provider. In relation to Amendments 24 and 38 which deal with perception, similar arguments against an explicit approach apply. We suggest that there is no need for such amendments. The definition of direct discrimination in Clause 13 is broad enough to cover cases where the victim of the less favourable treatment is wrongly thought to have any of the relevant protected characteristics, not just disability. The same principle applies in relation to subsection (3) when considered in the context of the operation of Clause 13 as a whole. Aside from it being unnecessary, by singling out disability, the amendment wrongly implies that discrimination based on perception is not prohibited if the protected characteristic is one other than disability. Clause 13(3) as drafted will help to address the very real disadvantage that disabled people can face in their everyday lives and sits alongside the other key provisions in the Bill such as the reasonable adjustments duty. We have acted in the Bill to outlaw the direct discrimination and indeed harassment of people who are perceived to be disabled because that is the right thing to do. We are not convinced that there is any need to be prescriptive in circumstances where more favourable treatment is afforded to a person who is incorrectly perceived to be disabled. The broad, single definition of direct discrimination in Clause 13 allows the courts to be flexible in their approach to its interpretation. On the other hand, listing the different kinds of direct discrimination could not be done exhaustively and would arguably reduce the courts’ ability to interpret the legislation flexibly in the future. I would like to say a little more on Amendment 38 which would extend protection from indirect discrimination to people who do not have a disability. If an employer refuses to employ a person because the employer thinks that the person has HIV/AIDS, a remedy is provided for such a person under Clause 13, even if the employer is wrong and the person does not have HIV/AIDS. What matters in a case of direct discrimination is that the victim has received less favourable treatment because of a protected characteristic. The fact that they do not actually have the protected characteristic is not relevant. They should not suffer discrimination because of that incorrect perception, just as someone else should not suffer discrimination because of a correct perception. By contrast, indirect discrimination in terms of both the Bill and underlying European directives occurs where an apparently neutral provision, criterion or practice puts or would put people who have a protected characteristic at a particular disadvantage compared to others, unless the application of the provision, criterion or practice can be objectively justified. An example of this would be where a bus company has a general policy of not allowing on its buses people who swear loudly. Unless the bus company could objectively justify the application of this policy, it would be indirectly discriminatory if the policy is applied to a person who has Tourette syndrome and as a result could not help swearing loudly in public. However, if the policy is applied to someone who does not have this disability, the policy would be perfectly reasonable. The bus driver’s perception of the person who swears loudly would be totally irrelevant. In the absence of any evidence that this protection is required, it is the Government’s view that only people who actually have a protected characteristic should be protected from indirect discrimination. Further, if we did extend protection from indirect discrimination to those who are perceived to have a particular disability, we would be giving them greater protection than those perceived to have any of the other protected characteristics listed in this clause. This would run contrary to the overall harmonisation and simplification objective of this Bill. The approach we have adopted in this clause is consistent with our obligations under European law. More generally there is a further risk, were discrimination based on association or perception to be set out on the face of the Bill, that this could be interpreted in a different way from how the courts have read that concept into the "on the grounds of" formulation used in current domestic and European legislation. Some might argue that the absence of a specific prohibition risks leaving victims unaware of their legal rights or generating uncertainty among employers and service providers. However, it is well established and well understood that the definitions of direct discrimination in current legislation using the "on the grounds of" formulation are broad enough to cover discrimination based on association and perception. As I will explain when we come to consider Clause 13, the "because of" formulation in that clause does not change the legal meaning of the definition. Guidance from the Equality and Human Rights Commission will clarify the legal position. Amendment 54 relates to the definition of harassment. Clause 26 defines one of the three forms of harassment as, ""unwanted conduct related to a protected characteristic"." This formulation means that protection is not limited to a person who has one of the characteristics to which the prohibition of harassment applies but also covers the person who is harassed because they are perceived, whether or not correctly, to have a protected characteristic. Indeed, its coverage is even wider than that and also includes protection where a person is harassed because of their association with someone who has a protected characteristic. This broad protection applies equally to all of the protected characteristics listed in Clause 26(5), of which disability is one. To set out explicitly that harassment related to perceived disability would cast doubt unnecessarily on the breadth of protection which can be covered by the "related to" formulation in respect of all the characteristics protected against harassment. We therefore consider the amendment is not necessary. For all those reasons, I urge the noble Lord to withdraw his proposed new clause and ask the noble Baronesses not to move their amendments.