Disability Discrimination Act: Enforcement and Remedies

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Disability Discrimination Act Enforcement and
Remedies

• DMH Stallard/2-3 Grays Inn Square
• 18th October 2006
• Damien Welfare

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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)

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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

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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

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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)

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Part 5A compliance with specific duties

• S 49E compliance notices by Disability Rights
  Commission
• S 49Fenforcement 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• All currently in force, but due to be repealed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

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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).

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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.

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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

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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.

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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

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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

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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

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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)

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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

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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)

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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)

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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

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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

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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)