Disability discrimination
The Disability Discrimination Act (DDA) is a good example of the modern mystification of a new area of law. The aim of the Act (now replaced with minor amendments by the Equality Act 2010) appears, at first sight, to be useful. It is a clear example of good, useful law in that its purpose is to protect the weak and vulnerable. But I defy you to find a lawyer who can tell you, off the top of his head, which sections of the Act were ever in force. Then we come on to the contents of the Act, which were so opaque and convoluted that non-lawyers and lawyers alike had extreme, almost insuperable, difficulty in grasping their meaning.
There are an estimated 6.5 million people in the United Kingdom who may come within the meaning of “disabled”. There is evidence of widespread discrimination against such people. If ever there was a need for a clear set of rules, it is in the context of protecting the rights of the disabled.
A disabled person who took the view that he or she had been discriminated against, and who sought to discover what the law was, faced a study of at least the following sources:
· The body of the Disability Discrimination Act 1995.
· Complex rules set out in the Schedules to the Act.
· Disability Discrimination (Employment) Regulations 1996.
· Disability Discrimination (Meaning of Disability) Regulations 1996.
· Disability Discrimination (Exemption for Small Employers) Order 1998.
· A mass of commencement orders which stated the date at which different parts of the Act came into force.
· A Code of Practice issued by the Department of Education and Employment.
· Guidance on matters to be taken into account in determining questions relating to the definition of disability.
· An increasing body of case law.
Thus a ten-year old body of law became fragmented and less and less accessible to disabled people. The parliamentary draftspersons responsible for the DDA created what can only be described as a monster - a set of rules which placed access to the law outside the reach of non-legally qualified disabled persons.
The result of an overview of disability discrimination law is the depressing conclusion that it is not realistic for disabled persons who are not lawyers to bring their own proceedings. Even highly-trained lawyers find the law difficult to grasp. A totally new area of law which should have provided a rare opportunity to demystify the rules has been wasted. The meaning of “disability” should not be a complex matter of law.
In one of the most recent cases (O’Hanlon v Commissioners for HM Revenue & Customs (2007) (a complex case dealing with the application of “reasonable adjustment” principles), Lord Justice Sedley said that the DDA in its amended form is not at all easy to follow. This is a particular misfortune in an Act which it ought to be possible for employees and managers to read, understand and implement without legal advice or litigation.
Harvey on Industrial Relations and Employment Law, the six-volume looseleaf leading text on employment law, has 50 pages of closely printed, closely argued text in Volume 2, in a section headed “People with disabilities”.
The editors of Harvey refer to “subtle and obscure legal difficulties” and describe the DDA legislation as an unusually complex piece of legislation which poses novel questions of interpretation.
A proper understanding of the DDA, according to the editors of Harvey, requires a close study of its structure and technical detail. A commonsense approach is simply not sufficient and, in many cases, is likely to be positively dangerous if taken as a guide to proper behaviour.
For example, it is not necessary to show that in a case when what is in issue is not direct discrimination but disability-related discrimination, that there is a comparator whose relevant circumstances are the same, or materially different.
The terminology of the disability discrimination legislation must be understood as having a variety of shades of meaning, for example “long-term”, “substantial” and “normal”.
Case law interpreting the legislation has added complexity. There are many EAT and Court of Appeal decisions of great complexity, for example those dealing with the concepts of reasonable adjustment and justification.
The incomprehensibility of disability discrimination law may itself be seen as a form of discrimination against the disabled.
The Equality Act 2010, which has been described by its proponents as a codification of the whole of English discrimination law, has not improved the accessibility of disability discrimination law. An opportunity to demystify the rules governing the position of some of the most vulnerable and deprived members of society has been lost.
Disabled persons who are non-lawyers, for whose protection the law of disability discrimination exists, are effectively prevented from understanding the rules. They are obliged to seek legal advice, often at ruinous cost, in order to understand their rights.