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Equality Bill

This amendment is designed to probe the balance of responsibility between an employer and an employee when dealing with disability. The Government have brought in Clause 15 to try to restore disability law to its status before the judgment in the case of the London Borough of Lewisham v Malcolm in 2008. By now we are all familiar with the details of this case, so I will not cover it in much detail now. Suffice it to say that, famously, the judgment in that case reversed the definition of disability-related discrimination decided by Clark v Novacold Ltd. That judgment stated that a like-for-like comparison could not be made because such a comparison may not be appropriate in a disability case. However, in the Malcolm case it was decided that Mr Malcolm, who had schizophrenia, should be treated in the same way as any other tenant who had sublet his home, despite the fact that his lawyers argued that the subletting was caused by his schizophrenia. There was general agreement that this judgment must be reversed in order to return disability law to its status before the judgment, and to how it was understood to operate before the judgment. We welcome the fact that the Government have attempted to address the issue with this clause and so to provide the degree of protection for disabled people that was originally intended. However, we would like to raise certain concerns, as we have seen that the Disability Charities Consortium is still doubtful about whether this goes the whole way to addressing its concerns. For this reason, we have tabled Amendment 35. It removes Clause 15(2), which states that person A does not discriminate against disabled person B, ""if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability"." The Disability Charities Consortium is very concerned by this because it argues that the Equality Bill inserts a knowledge requirement that was not present in the Disability Discrimination Act 1995. It is concerned by this because the feeling is that the balance will be very difficult to create and maintain. It is obviously the case that employers cannot be expected to know everything about their employees, and nor would it be right for them to ask. However, there is also the risk, as raised by the Disability Charities Consortium, that employers may use this requirement to create a culture of ignorance in which they can be less than proactive in asking questions and finding out details about their employees in order to provide themselves with a defence. As the Minister said, this clause was redrafted on Report in another place, ""to provide greater clarity that the provision is intended to cover discrimination that arises from matters connected with a disabled person's disability".—[Official Report, Commons, Equality Bill Committee, 16/6/09; col. 275.]" We welcome many of the changes that have been made to the clause. These were in response to pressure from the Official Opposition and the Liberal Democrats in another place. However, the knowledge requirement remains. Can the Minister clarify that it is indeed a new provision, not a clarification? Can she inform the Committee how the best balance will be achieved and maintained so that employers and employees are aware of precisely where they stand in relation to the law? I beg to move.