Disability Discrimination Act: Enforcement and Remedies DMH Stallard/2-3 Grays Inn Square 18 th October 2006 Damien Welfare

Damien Welfare October 2006 Part 5A: Public authorities – equality of opportunity Duty to promote equality of opportunity for disabled people From 4/12/06 Applies to anyone carrying out functions of a public nature – s 49B(1)(a)

Damien Welfare October 2006 S 49A – components of duty In carrying out functions, to have due regard to: - need to eliminate unlawful discrimination and harassment - need to promote equality of opportunity - need to take steps to take account of persons disabilities (even if treat more favourably) - need to promote positive attitudes - need to encourage participation

Damien Welfare October 2006 Equality of opportunity - Public bodies excluded: s 49B(1)(b) [eg Parliament, armed forces] Excluded functions – s 49C Remedy for failure – application to High Court for Judicial Review

Damien Welfare October 2006 Public authorities – specific duties Disability Equality Scheme (ie how to fulfil equality duty). Need to demonstrate disabled people involved in planning policies Power to impose specific duties – s 49D(1)

Damien Welfare October 2006 Part 5A: compliance with specific duties S 49E: compliance notices by Disability Rights Commission S 49F:enforcement of compliance notices (county court) S 49H: conciliation of disputes over landlords unreasonable withholding of consent to improvements to dwellings All currently in force, but due to be repealed under s 93, Equality Act 2006 from date to be appointed

Damien Welfare October 2006 Part 2: Employment and locally elected authorities including duty on local authorities not to discriminate against councillors (s 15B) S 17A: complaint to employment tribunal Route to challenge: discrimination or harassment by employer, principal (contract workers) or trade organisation. Vicarious liability applies – s 58(1).

Damien Welfare October 2006 Part 2 - s 17A (cont) Complaint within 3 months of act complained of (or later if tribunal considers just and equitable) Statutory grievance procedures apply S 17A(1C): special rules on burden of proof: ie complainant proves facts from which tribunal could conclude that respondent has acted unlawfully. Tribunal shall uphold complaint unless respondent proves did not so act.

Damien Welfare October 2006 Part 2 - s 17A (cont) Igen v Wong [2005] IRLR 258, CA: two stage process: a) complainant proves facts (tribunal assumes no adequate explanation); b) respondent proves did not commit unlawful act (or should be so treated) This reversal of burden applies to: failure to make reasonable adjustments; disability-related discrimination; harassment and victimisation

Damien Welfare October 2006 S 17A - process Conciliation applies: ACAS sent copy of every complaint and will seek to promote settlement Anything communicated to conciliation officer inadmissible without consent Questionnaires: complainant may ask questions about treatment which are admissible (if served within 3 months of act complained of; or, if after complaint presented, within 28 days) Schedule 3, Part I.

Damien Welfare October 2006 Powers of employment tribunal If finds complaint well-founded, shall take such of following as just and equitable: a) declaration of rights of complainant b) order for compensation c) recommendation that respondent take action to obviate or or reduce adverse effect on complainant

Damien Welfare October 2006 s 17A - compensation No limit. Tortious principles Essa v Laing Ltd [2004] EWCA Civ 02: may be no need to show losses reasonably foreseeable, only causally linked S 17A(4): compensation for injury to feelings recoverable (£750 likely minimum) Careful preparation eg witness statements

Damien Welfare October 2006 Part 2 – other points Reporting ban on evidence of personal nature – s 12, Emplt Tribunals Act 1996 Failure to make adjustments to premises: argument that lease prevents disregarded unless R applied for consent in writing (Sch 4, Pt I, para 1). Leases to be read as as though occupier entitled to make alteration with written consent, and consent not to be unreasonably withheld – s 18A

Damien Welfare October 2006 Sections 16B and 16C Advert for appointment or benefit unlawful if indicates, or may reasonably be understood to indicate, that not having (or having had) a disability is relevant to decision – s 16B Unlawful to instruct person over whom authority to act unlawfully under Act, or to induce contravention of Part (or Part 3 in relation to employment) by benefit or threat – s 16C Enforceable only by Commission for Equality and Human Rights (tba)

Damien Welfare October 2006 Part 3 – Other areas Unlawful discrimination is a tort Claim in county court; remedies as High Court Excludes group insurance arrangements or employment. Includes vicariously or by aiding act Compensation for injury to feelings – s 25(2) Procedure: Schedule 3, Part II : claim within 6 months of act complained of (unless court allows longer); Ministerial certificate conclusive re conditions imposed or national security

Damien Welfare October 2006 Part 4 - Education Special Educational Needs and Disability Tribunal – s 28H(1) Hears claims other than s 28K or 28L Schedule 4A lists responsible bodies for schools Admissions: claim under appeal arrangements – s 28K (s 94, School Standards and Frameworks Act 1998; s 482, EA 1996). Exclusions – s 29L: as above (s 52(3)(c), EA 2002; s 482, EA 1996)

Damien Welfare October 2006 Part 4 – Education (cont) If claim well-founded, Tribunal may: a) declare C unlawfully discriminated against; b) make such order as it considers reasonable (particularly to obviate/reduce adverse effect) No power to award compensation Procedure: Schedule 3, Part III (six month deadline for proceedings, unless longer allowed; Ministerial certificates conclusive as to conditions imposed)

Damien Welfare October 2006 Part 5 – Public Transport ss 47D-H: penalties applied by SofS re contraventions of rail vehicle accessibility regulations – tba Penalties up to prescribed limit, and not more than 10% of turnover Procedure for objections (s47K) Appeal to county court (s 47L) Directors: consent, connivance, neglect – s 48

Damien Welfare October 2006 Part 6 – National Disability Council Largely repealed by Disability Rights Commission Act 1999 S 51(3): failure to observe Code produced by Council does not of itself make person liable to proceedings

Damien Welfare October 2006 Part 7 - Supplemental S 53A: power of Disability Rights Commission to issue Codes of Practice. Repealed by Equality Act 2006 (tba). S 53A(8): failure to observe Code does not of itself make person liable to proceedings S 53(4): ditto Code of Practice by SofS (also repealed – tba)