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Equality Bill

My Lords, Amendment 4 in the names of the noble Baronesses, Lady Warsi and Lady Morris, is a recurring amendment, which we debated in Committee on 11 January. It would make an addition to the provisions in Schedule 1 for some people who experience depression. It would apply only to a person who in the past five years has had a period of depression that has had a substantial adverse effect on their ability to carry out normal day-to-day activities for a period of six months or more. It would enable them always to be treated as though that substantial adverse effect was likely to recur and thus meet the long-term element of the definition of disability. The Government’s position, which I set out on 11 January, has not changed. I am happy to set it out again today and to try to provide such further reassurance as I am able. We recognise, of course, that depression can have a profound effect on a person’s life, but we do not consider that extending the Equality Bill in this way is an appropriate way forward to deal with that issue. Paragraph 2(2) of Schedule 1 already provides for people whose impairment has fluctuating or recurrent adverse effects. That provision can, of course, help people with recurring periods of depression to benefit from the Bill’s protection. If a person has experienced a six-month period of depression that has had a substantial adverse effect on their normal day-to-day activities and that effect is likely to recur, the Bill enables that effect to be treated as continuing. It would apply regardless of whether the previous period was within the past five years. The relevant test of whether something is likely to recur has been held by the House of Lords to mean only that something "could well happen", rather than that it had to be "probable" or "more likely than not". This test is relatively easy to satisfy and so anyone whose depression could well recur would be covered by the provision as it stands. If we accepted the amendment, it would result in some people with depression being treated differently from others who experience periods of ill health or impairment, which can also have substantial adverse effects. I think that we were right to suggest then—and I repeat it now—that any such different treatment might well have a stigmatising effect on people with depression, which would be a wholly unwelcome outcome. The noble Baroness is right that it is often not possible to say whether someone has an underlying mental condition. I remind the House that we amended the definition in the 2005 Act, which we are carrying forward into this Bill, to remove the requirement for mental health impairments to be well recognised clinically and so increase protection for people with mental health problems. Of course, in this Bill we have extended protection to perception, so a person with a depressive condition who did not satisfy the Bill’s definition of a disabled person would be protected if, for example, their employer discriminated against them because he considered mistakenly that the impairment was likely to recur. This would also cover situations where an employer acted as a result of a prejudice against the mental illness that he thought his employee had. Therefore, given the provision already in Schedule 1, we believe that it is unnecessary to make the addition proposed in this amendment. Amendments 20A and 44A in the names of the noble Lord, Lord Low, and the noble Baroness, Lady Campbell, address how the reasonable adjustment duty works in the context of services and functions where a physical feature puts a disabled person at a substantial disadvantage and seek to import some of the familiar language from the Disability Discrimination Act. One of the benefits of this Bill is that it simplifies and harmonises discrimination legislation. These amendments, which apply only to services and public functions, do not achieve that result. Might they be taken to imply that similar considerations should not feature in the world of work? I am sure that the sponsors of the amendments would be horrified at that suggestion. We are wary of unintended consequences. However, as the noble Lord, Lord Low, has implied in his remarks, this is what you might call work in progress, so we would like to give further consideration to this pair of amendments. On that basis, I ask the noble Lord, Lord Low, not to press his amendments. Finally, in Clause 210, Amendment 60, tabled by the noble Lord, Lord Low, would define "substantial" for the purposes of the Bill. We use the word on a number of occasions in relation to disability provisions—for example, where we refer to people being at a "substantial disadvantage" for the purposes of the reasonable adjustment duty. The definition proposed by the noble Lord, Lord Low— ""more than minor or trivial"—" is the one that appears in guidance on matters to be taken into account in determining questions relating to the definition of disability and in the DRC’s code of practice for employment and occupation. Both of these support people working with the Disability Discrimination Act and we would expect identical references to appear in the statutory guidance that will support the Bill’s introduction. We consider the case law to be settled and clear. The motive behind the amendment—to ensure legal certainty and to ensure that "substantial" can continue to be read in the widest possible terms—is understandable. We have been told that the consequences would be catastrophic for disability discrimination law if the courts were to interpret the word differently from the way in which they have hitherto and thus raise the threshold before the protection is assured. While we do not anticipate the potential future difficulties that the noble Lord, Lord Low, and his legal advisers fear, for the reasons that I have set out briefly, we are minded to move to address the considerable concern that they have expressed and to put the matter beyond doubt. On that basis, the Government will accept the noble Lord’s amendment.