National AIDS Trust – Written Evidence (EQD0136)
Introduction
1. NAT (National AIDS Trust) is the UK’s leading policy and campaigning charity dedicated to transforming society’s response to HIV. We welcome the opportunity to submit evidence to the Select Committee on the Equality Act 2010 and Disability. HIV is a disability from the point of diagnosis under the Equality Act 2010 and the Act provides important protections for people living with HIV.
2. NAT campaigned extensively when the Equality Bill was going through Parliament for several new provisions to be included (for example the prohibition of pre-employment health questionnaires). We welcome the new protections the Act has introduced. However, there are several areas where we feel the Act and its implementation could be strengthened and improved - for example the enactment and strengthening of provisions relating to dual discrimination and the reintroduction of provisions related to third party harassment. In addition, we believe that cuts to legal aid and the introduction of fees for employment tribunals, have had a serious impact on the ability of the Act to achieve its objects. Our concerns are outlined in more detail below.
Responses to Committee questions
i. Has the Equality Act 2010 achieved the aim of strengthening and harmonising disability discrimination law? What has been the effect of disability now being one of nine protected characteristics?
3. NAT believes that bringing together discrimination law into one Act has been beneficial for disabled people. People have many different elements to their identity – many people living with HIV are gay or bisexual and/or from African communities (in the UK the two communities most affected by HIV are gay and bisexual men and black African men and women). Bringing the legal protections for all the protected characteristics together has simplified things, both for individuals who seek protection from the law, and for public authorities, employers and service providers who have responsibilities under the Act. In addition, new protections in the Act, such as the prohibition of pre-employment health questionnaires, have made a real difference to people living with HIV and we have worked in partnership with the EHRC to effectively enforce these provisions (see question eight).
4. We are of course aware of the concerns that disabled people and disability law gets less attention when contained within a broader act. However, we feel that the benefits of simpler legislation, plus the new protections introduced by the Act, outweigh these concerns. We do feel that some of the provisions included in the Act that have been revoked since 2010 or have yet to be enacted should be urgently reviewed – see response to question two.
ii. Are there gaps in the law on disability and equality not covered by the Equality Act 2010 or other legislation?
5. NAT welcomed the inclusion of protection from dual discrimination in the Equality Act. The Preamble to the UN Convention on the Rights of Persons with Disabilities highlights the importance of the issue of multiple discrimination:
The States Parties to the present Convention…
(p) Concerned about the difficult conditions faced by persons with disabilities who are subject to multiple or aggravated forms of discrimination on the basis of race, colour, sex, language, religion, political or other opinion, national, ethnic, indigenous or social origin, property, birth, age or other status
6. We actually campaigned for protection from multiple discrimination, and were disappointed when this was restricted to two protected characteristics. This is because, as noted above, HIV in the UK disproportionately affects two groups which experience inequality and discrimination – gay and bisexual men, and black Africans – and amongst black Africans, women are disproportionately affected. It is often hard to disentangle HIV discrimination from the homophobia, racism, anti-immigration prejudice and sexism which so many people living with HIV also experience.
7. However, although it did not go as far as we would have liked, the dual discrimination provisions marked an important step forward. We are therefore now calling on this part of the Act to be enacted as a priority, and ideally strengthened to cover multiple discrimination.
8. In addition, we would also like to highlight the recent repeal of certain provisions of the Act which now leaves gaps in the law. The repeal of third-party harassment provisions are of particular concern as we believe this could have a real benefit for people living with HIV. HIV remains a stigmatised condition and these additional protections made clear employers responsibility to protect their employees from harassment. Despite the fact that when the Government consulted on this issue, 71% of those that responded opposed the provision to repeal it, the Government went ahead. We would like to see these measures or something which offers similar protection reintroduced.
9. Finally we would also draw attention to the repeal of employment tribunals’ powers to make wider recommendations. The power in section 124(3)(b) was seen by the Government as adding little to the powers tribunals already have and is merely discretionary. However, as the EHRC have made clear, tribunals very rarely made recommendations under the pre-Equality Act law, as the power was confined to recommendations relating only to the claimant. We would seek a re-introduction of this provision or something similar to increase the impact of tribunal recommendations.
iii. Are the reasonable adjustment duties known and understood by disabled people, employers, service providers and others who have duties under them?
10. NAT did some research with City University looking at people living with HIV’s experience of work. As part of that we did a survey of nearly 2,000 HIV positive gay and bisexual men. Of these respondents, almost a third were not aware of their right to ask for reasonable adjustments. It is important to highlight that this research was carried out in 2009, but it does suggest that there was a significant amount of work required to highlight people’s rights, and we are not aware of any work that has been done by the Government to do this. This is particularly important amongst people living with HIV as many people do not think of themselves as disabled and so do not realise they have rights under the Act.
11. We would also underline our concern that the EHRC’s code of practice on employment, which should help ensure reasonable adjustment duties are known and understood, has not been laid before Parliament.
v. How effective has the public sector equality duty been in practice?
12. NAT has concerns that the current duty is a watering down of the original duties. However, we also recognise some of the benefits of bringing the duties together and widening it out to include the nine protected characteristics. This is particularly beneficial to people living with HIV as, as set out above, many people are gay and bisexual men or black African men or women.
13. Although we feel the duty could be strengthened, there are many examples of when the current duty has been effective in practice. HIV organisations have used the public sector equality duty to successfully challenge funding decisions that had not appropriately considered the impact of cuts on people living with HIV. When applied properly, it is a useful tool and the requirement to have ‘due regard’ can have a real impact on decision making processes.
14. We have ourselves used the duty to challenge public authorities’ behaviour. For example, in a recent case the CPS were attempting to charge an individual living with HIV with fraud for not disclosing their HIV status to their employer, even though the employer had used an illegal pre-employment questionnaire, and it was very clear that the case did not meet the public interest test. We wrote to the CPS reminding them of that their obligations under the duty and highlighting how the charge would set back equality and good relations as they apply to people living with HIV. We had a very quick response from the CPS who agreed with the points we had raised, dropped the fraud charge immediately, and also committed to reminding CPS staff about their responsibilities under the duty and Equality Act more broadly.
15. NAT is concerned that the duty as it stands may be under threat, as it could be wrongly viewed as unnecessary ‘red tape’. We would therefore highlight the positive impact the duty has had, though of course this does not mean it couldn’t be improved and strengthened.
vii. Does the division of responsibilities between Ministers and government departments affect the effective implementation of the Equality Act 2010 in respect of disability?
16. It seems clear that the division of responsibilities between Ministers and government departments affects the effective implementation of the Act in respect of disability. The EHRC’s sponsoring department is DCMS, but ministerial responsibility lies with the Department for Education and government policy rests with the Department for Work and Pensions. In addition to this, the Department of Health is a key department for people living with HIV and disability matters more widely. Although it is a positive step that there is now a Women and Equalities Select Committee, NAT would like to see transparent inter departmental working arrangements set up to avoid silo working and improve the development of disability and wider equality policy.
viii. How effective has the Equality and Human Rights Commission been in exercising its regulation and enforcement powers, and what contribution has this made to the impact of the Equality Act 2010 on people with disabilities?
17. It is clear that the extent that the EHRC can effectively exercise its regulatory and enforcement powers has been impacted on by the steady reduction in its funding. If one considers the budget for the Disability Rights Commission when it was in operation, and contrasts this with the budget for the EHRC which has responsibility for not one but nine protected characteristics, it is clear that the EHRC could have had a greater impact if it had been better resourced.
18. However, within its limited means, from our experience the EHRC has made a contribution to the impact of the Equality Act. For example, when we contacted them about a case where someone living with HIV had been asked to fill out a health questionnaire before the offer of a job was made (prohibited by the Act) the acted very quickly, contacting the company concerned and receiving an assurance that this questionnaire would no longer be used. They have encouraged us to alert them to other companies using questionnaires illegally so they can follow this up.
19. We do have concerns that the removal of the EHRC helpline and the establishment of the Equality Advisory Support Service has caused a disconnect between the EHRC and disabled people experiencing discrimination, perhaps impacting on the EHRC’s ability to take landmark cases. We would recommend that when the helpline is retendered this impact is given proper consideration.
ix. Could other regulatory bodies with a role in the effective implementation of the Equality Act 2010, such as inspectorates and ombudsmen, play a more significant part?
20. NAT would briefly highlight the work it has done with the CQC on HIV and the Equality Act. They have supported the development of our new resource, HIV: A guide for care providers which makes clear what care providers responsibilities are to people living with HIV (whether they are service users or employees) under the Equality Act. CQC have added this resource to their inspectorate training programme and we are also working with the Inspectorates in Wales and Scotland to ensure that people are aware of how the Equality Act should be implemented in relation to HIV in a care setting. We would now like to see this broadened out so the CQC consider the Equality Act in relation to health services as we are often made aware of cases where people face discrimination because of their HIV status in a healthcare setting.
x. Are the current enforcement mechanisms available to private individuals (through Employment Tribunals, County Courts and, in Scotland, Sheriff Courts) accessible and effective for people with disabilities, employers and providers of goods, facilities and services?
21. It is clear that the introduction of fees has established a major barrier to access to Employment Tribunals. We are pleased that the Ministry of Justice are reviewing this decision and we hope that the fees will be removed to make tribunals more accessible. In addition, we would like to see privacy measures introduced to tribunal hearings. We are aware of cases where someone living with HIV has felt unable to take an employment case to tribunal because they do not wish their HIV status to be widely disclosed. HIV remains a stigmatised condition and because of this many people feel unable to take a case which will involve the disclosure of their status.
22. We also have concerns about the impact of the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Although employment Equality Act Cases are outside the cuts to legal aid, it is rare for people to identify themselves that they have a discrimination case; they usually present to lawyers as having a problem at work. In addition, the cuts may deter people who may in fact be eligible for legal aid seeking help in the first place. Finally the impact of the wider cuts, mean that support organisations that offer advice, such as Citizen’s Advice Bureau, are overwhelmed and it is much more difficult for people to get access to advice.
23. Of course it is vital that steps are taken to improve access to enforcement mechanisms and advice, but when reflecting on the impact of the Equality Act, it is also useful to recognise the power of the Act in changing behaviours without the need for individuals to go through the sometimes distressing enforcement process.
24. For example, NAT has recently advocated on behalf of an individual who disclosed his status to his employer and was immediately told he could no longer work in the warehouse as he posed a health and safety threat. We were able to show the employer that this was direct disability discrimination under the Act as there is no risk of HIV transmission associated with the work in the warehouse and so the discrimination could not be justified.
25. In a further example we intervened when someone living with HIV was refused cosmetic surgery even though there was no justifiable reason why they could not have the surgery. By using the Act we were able to secure treatment for the individual and a change in the company’s policy so that in future people living with HIV will be able to access their services.
xi. Are there other legislative or non-legislative measures that would improve implementation of the Equality Act 2010 in respect of disability?
26. As highlighted in question three, information campaigns for both disabled people and those with responsibilities under the Act, would clearly improve the implementation of the Equality Act in respect of disability.
27. We would also, as underlined in question eight, propose that the EHRC is properly funded so they have the resources to exercise their regulatory and enforcement powers in relation to disability.
28. We would suggest that a review of the impact of changes to legal aid is carried out and steps taken to ensure that disabled people have access to the support and advice they need to access their rights.
29. The Government should as a matter of urgency lay the EHRC’s Code of Practice on Employment before Parliament and work with the ERHC to ensure other codes are developed. Providing clarity can only help improve the implementation of the Act.
30. We would also repeat our call for the dual discrimination provisions to be commenced and the repeal of the third party harassment and tribunals decision making provisions to be reversed.
31. Finally, we believe that a change in the tone of discussion around equality legislation and measures to bring about a fairer society for disabled people would make a real difference to the implementation of the Act. Instead of a rhetoric of red tape and bureaucracy, it would be helpful for there to be open discussion about the difference and benefits the Act can bring and the improvements this will make for everyone in society.
4 September 2015