The new concept of indirect disability discrimination is set to cause confusion, say Naomi Feinstein & Helena Davies
The government's recent announcement that it intends to extend the Disability Discrimination Act 2005 (DDA 2005) to incorporate, for the first time, the concept of indirect discrimination, has caused considerable controversy. The concern is that this would make DDA 2005 even more difficult to work with than it is at present.
Currently, DDA 2005 is constructed in a very different way to the other discrimination strands. There are three types of discrimination:
● Direct discrimination.
● Disability-related discrimination: where the individual has been treated less favourably than other people to whom that disability-related reason does not apply. Disability-related discrimination can be justified if the reason for the treatment is “material and substantial”. It is generally acknowledged that this is not a particularly onerous test.
● Failure to comply with a duty to make reasonable adjustments.
Problems caused by Malcolm
The House of Lords' judgment last year in London Borough of Lewisham v Malcolm [2008] All ER (D) 342 (Jun)
