Last week the House of Lords Select Committee took evidence on the working of the Equality Act 2010 from witnesses who have used the legislation in court.
One witness was Doug Paulley - a wheelchair user who took bus operator First Group to court in February 2012 after he was unable to board a bus in Leeds because the vehicle’s wheelchair space was occupied by a parent with a pushchair and sleeping baby.
A judge at Leeds County Court ruled that First Bus’s wheelchair ‘first come, first served’ policy was discriminatory and in breach of the Equality Act but the decision was overturned by the Court of Appeal. It is now listed for appeal to the Supreme Court in June 2016.
I was also called as a witness to give evidence on the impact of the Equality Act and put forward my views on ways in which the legislation can be improved. I am a solicitor specialising in serious injury compensation cases particularly those involving spinal cord injury claims. I have advised on several cases of alleged discrimination under the Equality Act 2010, and I also have experience of using the legislation on my own claims of discrimination.
I have a particular interest in the workings of the Equality Act and often feel frustrated that more disabled people don’t make better use of the powers that are available under the Act, to tackle discrimination.
I have lived with my disability for nearly 30 years. As a teenager I sustained a serious spinal cord injury after breaking my neck diving into the shallow end of a swimming pool. This was before the Disability Discrimination Act legislation came into force and since then, things have improved for those with a mobility impairment. The first time that I travelled by train for example, from Manchester to London, I had to travel in the unheated guard's van with the post!
Under the current Equality Act, only a disabled person who has been discriminated against can take action. Mr Paulley and I are particularly concerned that the Act is framed in such a way that the responsibility to take action is placed on the disabled individual - someone for whom it may well be even more challenging than for a layperson to attend court.
Mr Paulley suggests that the law should be changed so that class actions could be taken on behalf of people who have experienced discrimination, by user groups. In the meantime, he has produced what he calls the Disability Attitude Readjustment Tool - a guide to help anyone who feels the need to seek redress.
It is extremely important to emphasise that if, as a person with a disability, you feel you have been discriminated against and you would like to take action as a result, you don’t need to be a solicitor - you might not even need to go to court as many cases are settled before the need to appear in court becomes necessary.
Mr Paulley stresses that the majority of such cases may well feel unequal, almost David and Goliath-like, particularly as legal aid is increasingly unavailable and a litigant who has experienced discrimination has scant resources compared to the organisations they may be challenging.
This is particularly important and it is disappointing that there is no effective mediation service to provide resolution for both sides. If there was such a service – one which could allow a face-to-face meeting to take place between a disabled person and an organisation that has failed to take into account the needs of its customers with a disability; it would be tremendously empowering for the individual who has been discriminated against.
Generally speaking, an individual who takes legal action under the Equality Act simply wants to be able to enjoy the facilities provided by that organisation, in the same way that their other customers do. It is not about implementing any kind of legal penalty - something which could well leave the claimant feeling embarrassed or awkward about using the service provider’s facilities again, however accessible they may be in the future - it is merely about finding a resolution that works for everyone; ‘a win-win situation.’
At present, it is very difficult to obtain information about the number of actions taken by disabled people under the Equality Act. Although such actions are supposed to be notified to the Equality and Human Rights Commission (EHRC) this doesn’t always happen. Unfortunately even though cases of disability discrimination occur on a daily basis, they seem not to feature prominently in the media and the EHRC could and should do more to support those who have been subject to discrimination in whatever form.
Much has changed over the years in terms of access and disability discrimination but so much more needs to be done. Put simply, disability discrimination needs to become as unthinkable as any other form of discrimination. A business that fails to provide a ramp to enable access for wheelchair users is the same as one that hangs a sign in their window saying, “no black people.” The latter is obviously unthinkable, yet the former happens at businesses up and down the high street every day, and yet no-one seems perturbed. The positivity around disability that accompanied the London 2012 Olympics seems a world away now and a complete mind shift is needed.
As part of their deliberations into the Equality Act, the Lords Select Committee is investigating all aspects of disability discrimination and the Equality Act to decide how and if it needs to be changed. Their report will be delivered by 23 March 2016.
If you or a member of your family are affected by spinal cord injury, please call our Spinal Injury team on freephone 0800 916 9046 or contact us online and we will call you.