From Usefully Employed (hat-tip) comes the news that the consultation on the Equality Bill proposes the introduction of indirect discrimination as a category, which would help with the horlicks that the Lords made of the 1995 Act in Malcolm v Lewisham:
[the Bill shall] adopt the concept of indirect discrimination for the purposes of the disability discrimination provisions in the Equality Bill, rather than carry forward to the Equality Bill the existing provisions in the Disability Discrimination Act 1995 that apply to disability-related discrimination. Once a prima facie case of indirect discrimination has been made, it will be possible for the person who imposed the provision, criterion or practice to show that it was objectively justified to defeat the claim; and
introduce a requirement that those people and organisations that are under a duty to make reasonable adjustments for disabled people must make any reasonable adjustment that the Equality Bill will require them to make before they can seek to justify indirect discrimination.
Consultation here. Let us hope that this provision will extend to eviction as the 1995 Act did, but without the little difficulties.
That’ll teach me to hide the announcement in the comments to an old post below my ill-thought out ramblings on Lord Scott (http://nearlylegal.co.uk/2008/06/comments-on-malcolm-in-the-lords/#comment-11112) ;-)
@chief: Ah but chief, you merely announced there was a consultation. You don’t seriously expect us to read it to find out the juicy stuff do you.
Oh wait, that is kind of the blog’s job. Damn.
The worrying aspect of the consultation document is the very limited list of consultees set out at the end of the document. Rather than any sort of meaningful consultation it appears to be aimed only at potential cheerleaders. No attempt to take the social housing sector along with the proposals.
Little difficulties? Lots of them.
@Barrack Room Advice Services: Very true, but then I suspect the housing aspect to be something of an afterthought, as it evidently was in the 1995 Act
@NL:I was a little bit more direct in an email to the ODI regarding the list of consultees and suggested that they should contact the Tenant Services Authority, Homes and Communities Agency, the National Housing Federation and The Chartered Institute of Housing (amongst others).
In a response this afternoon they tell me ”…your comments regarding bodies we have not contacted are welcome and this is now being remedied.”
A small step, but one in the right direction.
Next task is to try and get the Housing Association to engage with the consultation.
OT in as much as it relates to employment, but two EAT judgments have just popped up on BAILII confirming that Malcolm does apply to employment. Countrywide Estate Agents v Rice is actually from November (see http://www.bailii.org/uk/cases/UKEAT/2008/0392_08_2611.html). Para 34: “despite the fact that it [Malcolm] was a housing discrimination case, it is clear that it applies to employment matters as well. There is no dispute about that between Counsel and that is quite clearly the case. The remarks of the members of the House of Lords in the Malcolm case are equally applicable to employment law cases.”
In the second one, CSA (Dudley) v Truman Counsel for the Respondent argued valiantly that Novacold still applied to employment cases, but he was unsuccessful. See paras 16-23 at http://www.bailii.org/uk/cases/UKEAT/2009/0293_08_0502.html for the EAT’s discussion on Malcolm.