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Disability Discrimination Act: Enforcement and Remedies

Disability Discrimination Act: Enforcement and Remedies. DMH Stallard/2-3 Gray’s Inn Square 18 th October 2006 Damien Welfare. Part 5A: Public authorities – equality of opportunity. Duty to promote equality of opportunity for disabled people From 4/12/06

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Disability Discrimination Act: Enforcement and Remedies

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  1. Disability Discrimination Act: Enforcement and Remedies DMH Stallard/2-3 Gray’s Inn Square 18th October 2006 Damien Welfare

  2. 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

  3. 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

  4. 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

  5. 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

  6. 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landlords’ unreasonable withholding of consent to improvements to dwellings • All currently in force, but due to be repealed under s 93, Equality Act 2006 from date to be appointed Damien Welfare October 2006

  7. 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

  8. 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

  9. 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

  10. 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

  11. 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

  12. 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

  13. 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

  14. 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

  15. 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

  16. 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

  17. 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

  18. 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

  19. 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

  20. 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) Damien Welfare October 2006

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