Equality Act 2010
In the UK, the Disability Discrimination Act 1995 (the DDA 1995) was the first anti-discrimination legislation affording disabled people protection. It culminated in the Equality Act 2010 (the EqA 2010) which is part of the fifth generation of equality legislation in Britain, and its overriding aim is to achieve harmonisation, simplification and modernisation of equality law, replacing nine previous major pieces of legislation and fully implementing four main EU Directives.
How do Deaf people qualify for its protections?
Disability is defined in section 6(1) of the EqA 2010 as a “physical or mental impairment that has a substantial and long-term adverse effect on [the disabled person’s] ability to carry out normal day-to-day activities”1. In contrast, the Employment Equality Directive does not include a definition of disability or guidance on who is to be protected from discrimination on the grounds of disability, but in Chacón Navas v Eurest Colectividades SA the European Court of Justice has defined disability, for the purposes of the Directive, as: “a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life”2.
The case of Goodwin v Patent Office3 held that there are four key questions to consider when determining whether an individual meets the definition of disability contained in section 6(1): whether the individual has a physical or mental impairment, which has to be considered in the context of “it’s ordinary and natural meaning”4. The World Health Organisation defines ‘impairment’ as “problems in body function or structure as a significant deviation or loss”5. In College of Ripon & St John v Hobbs, it was held that a person has a physical impairment if they have “something wrong with them physically”6. In Walker v Sita Information Networking Computing Ltd7, it was held that what is important is the effect of the impairment, and not its cause; therefore how deafness is caused is not relevant, but what its effect on the individual is, such as communication and language acquisition, and in J v DLA Piper UK LLP8, it was held that the focus should be the impairment’s effect on the individual’s day-to-day activities. When considering whether that impairment have an adverse effect on the individual’s ability to carry out normal day-to-day activities, an objective test stipulates that there has to be a balance between what is ‘normal’ and what is ‘abnormal’ or ‘unusual’ as a regular activity9, and work-related activities can be taken into account10.
Consideration then needs to be given as to whether that effect is substantial. ‘Substantial’ is defined in section 212 of the EqA 2010 as “more than minor or trivial”, giving legislative effect to the pre-EqA 2010 case of Vicary v BT11. The legal stipulation that the disability has to be substantial and long term however reinforces the medical model in that disability is identified by the extent of bodily or intellectual difference. This emphasis is misleading and underplays the potential discrimination faced by individuals with unseen, but stigmatised impairments, such as deafness. This is a very disappointing feature of the EqA 2010, which is symbolic of being based on dated and disablist epistemologies, and places the impairment at the centre of the issue of performing at work12.
Finally, determination has to be made as to whether the effect of the impairment on day-to-day activities is long term, that is to say, it has lasted or is likely to last at least 12 months or for the rest of the individual’s life. Applying this, it has been argued in Chapter 1 that being deaf is an impairment for this purpose, in that it is a sensory “loss” or lack of hearing which has a substantial and adverse effect on a d/Deaf individual’s ability to carry out day-to-day activities such as listening, communication and in some cases, speaking, reading or writing13. A search for any relevant case law that considers whether a d/Deaf person meets the definition of disability was in vain, as was a search for any case law that considered section 1 of the DDA 1995, which contained the previous definition of disability. This suggests that d/Deaf claimants have generally not experienced any issues proving that they have a disability for the purposes of the DDA 1995 or the EqA 2010, although it is possible that this issue could have been considered at the first tier but not appealed.
At this conjecture, it would be prudent to remind oneself of the fact that Deaf people reject the suggestion that they have an impairment or disability14, and that Deaf people are fundamentally unlike people who say they have disabilities, for to Deaf people the proposal that they have a disability “just doesn’t compute”15, and so disowning the disability label would be the honest thing to do16. To illustrate the point that Deaf people are unlike disabled people, Harmon provides an interesting analogy:
“A solitary deaf, non-signing person or a culturally or linguistically Deaf person walking down a street is equally taken for an able-bodied person, out and about in hearing society. In a hearing world, both are assumed to be able-bodied, and by extension, hearing. It is only when one speaks, with a deaf voice, or signs, or seems to ignore someone while trying to cross a busy road, that the assumption is skewed, but not yet skewered.”17
Thus, not only are Deaf people are being forced to accept an inaccurate label in order to qualify for the EqA 2010’s anti-discrimination provisions (in the absence of an alternative domestic source for redress), they are reinforcing society’s view of deaf people as disabled people in doing so.
1.1.2. How are Deaf people protected by the Equality Act 2010?
Having considered how Deaf people qualify the EqA 2010’s protections, it would now be prudent to explore the discrimination provisions of the Act itself, to determine how Deaf claimants can or could fare, thus continuing this exploration of how equality law does not afford Deaf individuals from infringements of their fundamental human rights.
There are six different types of discrimination that apply to Deaf people: direct discrimination18, indirect discrimination19, harassment20, victimisation21, discrimination arising from disability22 and the failure to make reasonable adjustments23. Strictly speaking, it is not necessary to go through each type of discrimination in detail, as the crucial issue for the purposes of this thesis is how d/Deaf people meet the definition of disability.
With regard to indirect discrimination, for a d/Deaf person to make such a claim, it is necessary for them to show that the employer or service provider applied to them a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of the d/Deaf individual, thus requiring a comparator who is not d/Deaf; placing them at a disadvantage, and the employer or service provider cannot show that the disadvantage was a proportionate means of achieving a legitimate aim24. Indirect discrimination only applies to a class of individuals as opposed to one individual25. But how does one define that class in the context of d/Deaf people?
There is considerable ambiguity on what now constitutes a reasonable adjustment following the Employment Appeal Tribunal’s decision in Cordell v Foreign & Commonwealth Office26, which makes it clear that there is a cap on the costs an employer is expected to pay for adjustments. In this case, it was considered that £250,000 for lip speakers27 to accompany a deaf diplomat in Kazakhstan was unreasonable. This is in contrast to Royal Bank of Scotland Group Plc v Allen28, in which it was decided by the Court of Appeal that an adjustment costing £200,000 to install a wheelchair access at the bank’s Church Street branch in Sheffield, was reasonable. One can conclude from these decisions that the communication needs of D/deaf people are not considered as essential as the access needs of wheelchair users, which suggests that Parliament is required to ensure a fairer distribution of resources in the judicial process.
By way of critique of the EqA 2010, it appears that the Government rejected proposals that the EqA 2010 should contain a statement of interpretative principles that would help those applying the legislation to promote its purposes, particularly where gaps have to be filled or ambiguities resolved. The Government also declined to accept an amendment that would have created a ‘right to equality’ or ‘equality guarantee’29. However, Hepple argues that while the EqA 2010 does not contain a ‘statement of interpretative principles’ or ‘purposes’, the theories of equality can be found in the Equality Act 200630, whereby section 3 of the Equality Act 2006 states that the general duty of the Equality and Human Rights Commission is to encourage and support the development of a society in which- (a) people’s ability to achieve their potential is not limited by prejudice and discrimination; (b) there is respect for and protection of each individual’s Human Rights; (c) there is respect for the dignity and worth of each individual; (d) each individual has an equal opportunity to participate in society; and (e) there is mutual respect between groups based on understanding and valuing of diversity and on shared respect of equality and human rights. Hepple goes on to compare section 3 with the definition of an ‘equal society’ is defined by the Equalities Review31 as one which protects and promotes equal, real freedom and substantive opportunity to live in the ways people value and would choose, so that everyone can flourish, and recognises people’s different needs, situations and goals and removes the barriers that limit what people can do and can be32. Indeed, at the ‘Equality Act 2010: five-years on’ conference, Hepple urged the EHRC to utilise their powers and budget more effectively in light of the introduction of fees in the Employment Tribunal and legal aid cuts33.
Public Sector Equality Duty
The first public sector duty in England and Wales related to race, and was introduced by the Race Relations (Amendment) Act 2000, which introduced a duty on public sector organisations not to discriminate on grounds of race in the carrying out of their functions, and a duty to eliminate discrimination and to promote equality and good relations between different racial groups. The aim of the legislation was to make the promotion of racial equality central to the work of the public authorities, and meant that public authorities had to take account of racial equality in the day-to-day work of policy making, service delivery, employment practice and other functions. The public sector race equality duty reflected a much richer understand- ing of equality and its causes than that reflected elsewhere in the law, and created duties on major public actors to take proactive steps to tackle race inequality, including taking action to promote good relations between different groups. Similar duties have followed to promote equality on grounds of disability from 200634 and on grounds of gender from 200735.
Although cases are few, the measure of success of the public sector equality duties is not so much via the law reports, but through the development of a culture of mainstreaming race, gender and disability equality measures in most public sector organisations. There is evidence to suggest that implementation in practice is limited, particularly by the development of bureaucratic responses, focusing on compliance rather than with achieving substantive equality outcomes. The criticism focuses on the fact that many organisations have developed bureaucratic processes to ensure compliance with the duty, rather than focusing on removing the inequality in question. In effect, a ‘tick box’ mentality has developed, focusing on procedures for decision making. This enables public bodies to show that they have considered equality issues, rather than focusing on the impact of decisions made, and whether they have been altered to ensure that equality issues are properly addressed36.
In Scotland, the British Sign Language (Scotland) Act 2015 (the BSL Act 2015) promotes the use of BSL including by making provision for the preparation and publication of national plans in relation to BSL and by requiring certain authorities to prepare and publish their own BSL plans in connection with the exercise of their functions; and to provide for the manner in which such plans are to be prepared and for their review and updating37. It is argued that the BSL Act 2015 demonstrates the traditional characteristics of a public sector equality duty, as it imposes a duty on Scottish Minsters publish national plans in relation to BSL38, and on listed authorities39 to publish authority plans40. Both Scottish Ministers and listed authorities are required to consult in preparing their respective plans41. It is argued that the public sector equality duty goes somewhat further, with public authorities required to have due regard to the need to eliminate prohibited conduct42, advance equality of opportunity43 and foster good relations44, as opposed to a mere duty to publish national and authority plans.
With regard to the protection of Deaf people as a cultural linguistic minority, there is an argument that such protection should not be given to characteristics which are chosen by the individual. Vickers puts forwards general arguments as to why the public sector equality duty should not have been extended to religion and belief, such as that protection should not be given to characteristics which are chosen by the individual, although she states that the lack of mobility between religious groups, the fact that it is a fundamental choice closely related to an individual’s concept of identity and self-respect, suggests that religion is not experienced has having been ‘chosen’45. It could be argued (by hearing people or deaf people who resist the idea of being culturally Deaf) that being Deaf is a ‘choice’, in that a deaf individual does not have to become Deaf should they choose not to, perhaps because they wish to assimilate as far as possible with the Hearing-World. Although many Deaf individuals may become Deaf during their lifetimes, Harmon explains that children who are deaf are considered to be nascent members of the Deaf linguistic and cultural community, by dint of their deafness46, a point supported by Lane, Hoffmeister and Bahan who argue that a child who has not acquired spoken language and culture because of limited hearing is a culturally Deaf child, even if that child has not yet had the opportunity to learn DEAF-WORLD language and culture47.
- EqA 2010, s 6(1) [↩]
- Chacón Navas v Eurest Colectividades SA (Case C-13/05) 2006 ECR 1-6467. [↩]
-  IRLR 4. [↩]
- McNicol v Balfour Beatty  EWCA Civ 1074. [↩]
- World Health Organisation, ‘International classification of functioning, disability and health’ (2001) 12. [↩]
- College of Ripon & St John v Hobbs 2001 WL 1560718, . [↩]
- UKEAT/0097/12/KN. [↩]
- UKEAT/0263/09/RN. [↩]
- Ekpe v Commissioner of Police for the Metropolis  IRLR 605. [↩]
- Law Hospital Trust v Rush  IRLR 611; Cruickshank v VAW Motorcast  ICR 729. [↩]
- Vicary v BT  IRLR 680. [↩]
- A Roulstone, ‘The Legal Road to Rights – Disabling Premises, Obiter Dicta and the Disability Discrimination Act 1995’ (2003) 18(2) Disability & Society 117, 122-3. [↩]
- It is an accepted fact that d/Deaf people are more likely to leave school at 16 with a reading age of eight, and recent statistics have shown that d/Deaf children are xx percent less likely to achieve at least five GCSEs graded between A and C than non-d/Deaf children. [↩]
- HL Lane, ‘Do Deaf People Have a Disability?’ (2002) 2 Sign Language Studies 4 356, 368. [↩]
- T Humphries, ‘Deaf Culture and Cultures’, in KM Christensen and GL Delgado, Multicultural Issues in Deafness (Longman 1993) 14. [↩]
- H Lane, The Mask of Benevolence: Disabling the Deaf Community (Vintage Books 1999) 369. [↩]
- K Harmon, ‘Deaf Matters: Compulsory Hearing and Ability Trouble’, in EF Emens and MA Stein (eds), Disability and Equality Law (Ashgate 2013) 281. [↩]
- EqA 2010, s 13(1). [↩]
- ibid s 19(1). [↩]
- ibid s 26. [↩]
- ibid s 27(1). [↩]
- ibid s 15. [↩]
- The duty to make reasonable adjustments is contained within section 20 of the EqA 2010, and the failure to do so in section 21. [↩]
- EqA 2010, s 19(2)(d). [↩]
- ibid ss 19(2)(a)-(b). [↩]
- UKEAT/0016/11/SM. [↩]
- A lipspeaker is a hearing person who has been professionally trained to be easy to lipread. Association of Lipspeakers, ‘What is a Lipspeaker?’ [http://lipspeaking.co.uk] accessed 16 January 2016. [↩]
-  EWCA Civ 1213. [↩]
- B Hepple, Equality: The Legal Framework (2nd edn, Hart Publishing 2014) 17. [↩]
- ibid. [↩]
- The Equalities Review, ‘Fairness and Freedom: the Final Report of the Equalities Review’ (2007) 16 [http://webarchive.nationalarchives.gov.uk/20100807034701/http:/archive.cabinetoffice.gov.uk/equalitiesreview/upload/assets/www.theequalitiesreview.org.uk/equality_review.pdf] accessed 30 March 2015. [↩]
- Hepple (n 29) 18 [↩]
- B Hepple, ‘Keynote Address’ (The Equality Act 2010: five-years on, Chester, 2015). [↩]
- Disability Discrimination Act 2005. [↩]
- Equality Act 2006, amending the Sex Discrimination Act 1975. [↩]
- L Vickers, ‘Promoting Equality or Fostering Resentment? The Public Sector Equality Duty and Religion and Belief’ (2011) 31(1) Legal Studies 135, 137. [↩]
- British Sign Language (Scotland) Act 2015. [↩]
- ibid s 1(2). [↩]
- A list of authorities can be found in the Schedule, and includes councils, health boards, post-16 education bodies and the Scottish Courts and Tribunals Service among others. [↩]
- BSL (Scotland) Act (n x) s 2(1). [↩]
- ibid ss 1(9) and 2(5). [↩]
- Equality Act 2010, s 149(1(a). [↩]
- ibid s 149(1)(b). [↩]
- ibid s 149(1)(c). [↩]
- Vickers (n 36) 138. [↩]
- Harmon (n 17) 277. [↩]
- H Lane, R Hoffmeister and B Bahan, A Journey into the Deaf-World (DawnSignPress 1996) x. [↩]