Statement Concerning the Scottish Courts Service

I have worked exceptionally hard over the last three years or so to promote equality within the Scottish Courts Service (SCS) as an unpaid volunteer member of their Equalities Advisory Group (EAG).

During this time, I took on many challenging subjects and in particular took a lot of time, outside of attending our regular meetings, to take forward additional work.  

I enjoyed this work and also looked forward to each of the meetings to which I contributed fully.  

Regretfully, I was told by Chair on Monday (17 February 2014) afternoon, that I was no longer welcome to be a member of the EAG.  

I am disappointed but to a certain extent, not surprised.    

It was not until I raised concerns recently about ongoing disability discrimination and transphobia, which were backed by evidence, that both Chair and the SCS management decided that I was no longer welcome.  

I tried repeatedly to raise these issues but felt that I was ignored.  

In particular, the SCS authorised the refurbishment of a court room in Dundee with scant regard to accessibility and more regard for financial expediency.  

Needless to say, I objected to this as it is not the manner in which our public services are meant to behave.  

It has subsequently been pointed out to me that as an EAG member I have no right to raise a grievance within the SCS and that the dignity at work policy does not apply to members of the EAG amongst other matters.  

In particular, it has also emerged that Chair has the right to remove members of the EAG.  

Raising a complain under the Equality Act is a protected act.  This means that a person raising a complain about disability discrimination and transphobia as I have done should not suffer any detriment for doing so.  

As a basic human right, everyone is entitled to have their dignity respected.  

Additionally, public bodies, such as the SCS, are required to apply the European Convention on Human Rights to all aspects of their work.   

Volunteer Development Scotland, together with the Scottish TUC, agreed a code of practice for organisations that work with Volunteers.  

The SCS does not subscribe to this code.  Amongst other things, the code states that:- 

Effective structures should be put in place to support and develop volunteers and the activities they undertake, and these should be fully considered and costed when services are planned and development.

 Volunteers and paid staff should be provided with opportunities to contribute to the development of volunteering policies and procedures.

 Volunteers, like paid staff, should be able to carry out their duties in safe, secure and healthy environments that are free from harassment, intimidation, bullying, violence and discrimination.

 All paid workers and volunteers should have access to appropriate training and development. 

There should be recognised machinery for the resolution of any problems between organisations and volunteers or between paid staff and volunteers. 

I was not told in advance that Chair intended to remove me from the EAG nor was I told about a secret letter that had been prepared and delivered to Chair by the SCS management. 

I was not given an opportunity to see this letter or address any of its contents. 

I was mislead as to the nature of this meeting. 

I was also accused of being "aggressive and threatening".  

My dignity was violated yesterday and I left our meeting in a distressed state.

At no stage have I ever been aggressive or threatening to anyone.  

I raised a complaint concerning the SCSs failure to address accessibility and transphobia.  I also stated that there was a problem with institutional discrimination.

I was victimised for doing so.

I was bullied by them.  

If the SCS had in place appropriate structures and machinery for addressing my concerns, I am sure that matters would not have gone this far.  Unfortunately, they do not.  

I am disappointed at the manner in which both Chair and the SCS have handled my complaints.  

I am also disappointed that it appears acceptable to unilaterally remove a member of the EAG, to write a secret letter about them and not provide any opportunity to answer its contents and then accuse someone like myself of being aggressive and threatening. 

I am now considering my position.  

A complaint has been made to the SCS about mondays meeting and the failure to address my concerns. 

We will wait and see what happens.  

I would welcome your support right now as it is a struggle to keep up the good fight on my own. 

This is even more difficult and distressing for me because I have multiple disabilities and I cannot come to terms with how this public body has behaved.

Yours for equality,

Daniel

Institutional Discrimination - Call it Out

Image from Pinkfamilies.com

In February 1999, Sir William Macpherson published his report into the Metropolitan Police ("the Met") and their handling of the murder investigation of the late Stephen Lawrence.

At that time, one of the controversial assertions made in his report, was that the Met was "institutionally racist".  This is the definition used by Sir Macpherson:

"The collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and racist stereotyping which disadvantage minority ethnic people."

  

(Home Office, The Stephen Lawrence Inquiry: Report of an Inquiry by Sir William Macpherson of Cluny, February 1999, para 6.34)

While the Macpherson Report had "race" as its focus, the definition provided can easily be expanded to encompass the other protected characteristics within the Equality Act 2010.

"The collective failure of an organisation to provide an appropriate and professional service to people because they share a Protected Characteristic, whether directly or indirectly. It can be seen or detected in processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and stereotyping which disadvantage people because they share a Protected Characteristic, whether directly or indirectly as the case may be."
Or words to that effect, replacing reference to "race" with "disability" or "age" and so on.  

The wide ranging application of Macpherson's definition has already been realised by a number of public authorities.  The definition has been used to inform their training in and understanding of equalities within their own policy framework.

However, nearly fifteen years on, the same cannot be said of every public service.    

In this article, I will examine the term institutional discrimination with reference to various Protected Characteristics.  I will also demonstrate where more work needs to be done in order to engender that cultural change, in "processes, attitudes and behaviour..." as identified by Sir Macpherson when addressing institutional racism within the Met. 

Example 1 - The Bedroom Tax

Readers may not be fully familiar with the full application of the policy described by the current UK Government as "the spare room subsidy" or more popularly coined as "the bedroom tax".

This policy cut the level of housing benefit paid to single people, couples or families with adult children who lived in public sector housing with more bedrooms that their assessed need.  In the case of a couple (without children) one double bedroom was deemed suitable.  This was also the case for single people or single parents who may only have their children stay with them for part of a week.

Disabled people were also covered by the new policy decision.  However, what was not taken on board by the UK Government was the lack of suitably sized and suitably located accommodation for disabled people, single people without children or couples living alone.  There was also a lack of appreciation to what purpose the extra bedroom was put.

For example, in the case of a disabled person who is a Kidney patient - and awaiting a transplant - the extra bedroom may be used to store essential medical equipment, including a hospital bed (or re-laxer chair), sink, dialyses machine, filters and other associated paraphernalia required by that patient for their day to day living.  It is also likely that that machine, together with its filter technology will have been permanently plumbed into the cold and waste water mains. 

The extra bedroom, in this case, is being used for a specific purpose.  It is also being used as an alternative to the patient taking longer term stays in hospital.  The patient's partner is usually the full time carer of the patient and will have received specialist training to assist their partner through their dialyses.  This approach is saving the NHS and also the Taxpayer money.

In the case of a single parent, estranged from their former spouse, but retaining full parental responsibilities and rights, the extra bedroom may be necessary to accommodate the children when they stay with that parent.   

In this scenario, the blind classification system adopted by the UK Government, a kidney patient, despite saving the Taxpayer money, will no longer be entitled to financial support to fund the spare room.  The single parent, who relies on the spare room for their children, will no longer be entitled to financial support for that room.  In both cases, the room will be classified as a bedroom, an extra room, surplus their assessed requirements.

Example 2 - Non Binary Gender

It is a common assumption that there are only two categories of gender - male and female.

To a certain extent, this assumption follows the sexing of a child at birth and the continued assumption that that sex will lead to a particular gender identity.

However, as a child grows and becomes more conscious of their own identity, they may find both the cultural gendering and their prescribed biological sexing difficult to reconcile.  The conflict may present at any age and in no particular prescribed manner.

Some people may grow up biologically female and yet identify more closely with the male gender.  Other people may grow up biologically male and identify themselves as female.  In both cases, some people may not identify with either the male or female gender, nor accept their prescribed sex given at birth.

The legal system has evolved - following a number of Human Rights challenges - to recognise that someone may wish to have their gender reassigned.  The law also protects someone, at whatever stage in their gender reassignment process, from discrimination.

Taking this into account, toilet and changing room facilities remain prescribed in many cases as either male or female.  Additionally, passports and birth certificates, both require a gender identity to be provided as either male or female.  It is noted, that in some cases, this culture has begun to change.  Nepal was one of the first countries to recognise another gender "X" in formal documents and other some venues have at least considered introducing some gender neutral toilets.

However, despite greater understanding and legal changes, the culture remains predominately discriminatory against non-binary gender people.

Example 3 - The Court System

The legal system is full of tradition and established models of work.  This culture extends to features, facilities and institutions through which the legal system operates.    

Court Rooms traditionally see the Judge sitting on a stepped, higher level, than the well of the Court or the Public Gallery.  Witnesses are usually required to enter a "Box", swear an Oath before God and stand to give evidence.

The majority of buildings are not fully accessible through the main entrance, host Court rooms in inaccessible locations and predominately contain features to accommodate the utility of the majority - namely able bodied, non disabled people.

To a certain extent, one has to acknowledge legacy issues, particularly concerning buildings and facilities built to a standard not accepted today.  However, this explanation has to be taken in context of legislative, jurisprudential and societal change.

The European Convention on Human Rights ("the Convention") was written with an Article 6 absolute right to a fair hearing.  The Disability Discrimination Act was passed by Parliament in 1995 followed by the Equality Act 2010 (disability and religion / belief are protected characteristics within the Equality Act).  The Human Rights Act 1998, brought the Convention into domestic law and the Scotland Act 1998 provided for the Scottish Parliament to encourage equal opportunities.

In addition, disabled people have featured more heavily in social policy and policy development.  A new societal understanding of disability has been encouraged and people who do not hold any specific religious conviction have their views recognised too, in addition to any traditional religious systems of belief.

Institutional Discrimination in Context

Bedroom Tax

In the first example, we see that both the disabled person (the kidney patient) and the single person (the parent) face discrimination against their own particular circumstances.

The Government has approached the Policy decision to withdraw financial support for extra bedrooms from the perspective of cost.  The policy primer; cut the cost of housing benefit, save the tax payer money and cut the budget deficit - look good to the voters.

Although the UK Government did consult concerning their policy, they ignored the representations made.

The policy discriminates against disabled people, who require a spare bedroom, as a consequence of their disability.

The policy also interferes with the respect for family and private life.  This is a Human Right found in Article 8 of the Convention.  It also likely indirectly discriminates against men, as single parents, who are statistically less likely than women to hold "full time" caring responsibilities for any children.  (Indirect discrimination occurs where an apparently neutral policy, criteria or practice has a disproportionate effect on one group of people more so than others).

The UK Government was aware of these policy impacts.  Yet, despite being made aware, the policy continues under the auspices of expediency.  In this case, the need to save money.

The policy is an example of institutional discrimination for that reason.      
        
Non Binary Gender

As described above, non binary gender people are protected from discrimination at any stage in their gender reassignment process or if they are perceived to be undergoing a gender reassignment process.  Yet, the Passport still requires to bear either a Male of Female gender identity.  Toilets and changing rooms remain focused on either male or female gender roles.

If you do not subscribe to either a male or female gender identity, what do you do about your Passport or which set of changing rooms do you use?

The culture of expediency is found here as well.  It is easy to use only male or female gender identities, that reduces the need for training of staff around the issues, the redesign of Passport form and booklets or changing the policy around toilet designs.  It is also easier to accept and go with the pre-existing convention, than seek to challenge it and thus have to face questions from the curious public about new ways of working.

This is institutional discrimination.  

The Court System

Direct disability discrimination can not be justified in law.

Almost 20 years have passed since the advent of the Disability Discrimination Act.

Public services have been put on notice for some time that old ways of working - which excluded disabled people - were not acceptable.

Similarly, public services should have also been aware that their legal duties do not stop with a limited range of reasonable adjustments.

The legal duty is both anticipatory and continuing.

Yet, disabled people, with a range of mobility related impairments are routinely discriminated against in both the facilities and accommodation they are presented with.

If someone is in a wheelchair, how is that person to give evidence from a "Box" if it features a step and is not wide enough to accommodate a wheelchair user?  Are lawyers with mobility impairments able to apply for the role of Sheriff (Judge) knowing that the working environment is largely inaccessible?

Of course, it is possible to make reasonable adjustments.  However, the crux is that it would not be necessary to do this if our Court buildings were made accessible in the first place.

The situation is further compounded when new facilities are built or when existing facilities are refurbished and the old, discriminatory, inaccessible practices continue.

This is institutional discrimination.

A similar story is found concerning the swearing of a witness' Oath.

The Law recognises and prevents discrimination against people with religious beliefs or people without religious beliefs.  This is a qualified right, in that it is not possible to claim religious discrimination when providing public services (for example, for a Christian couple to refuse B&B accommodation to a Gay couple).

Yet, the standard Oath used in Court is the religious Oath.

It is assumed, almost entirely, that this Oath will be used because it has formed standard practice for so many years.  An alternative is available, however it is not readily used or advertised.

This too, is institutional discrimination.
  
Going Forward

It is easy to discriminate.  That is self evident. 

It is more difficult, perhaps because of cost, resource allocation, or some other reason not to discriminate.

It is also too easy to provide passive acquiescence to the discriminatory status quo.    

However, both society and the law accept that discrimination is unacceptable.

Just as Sir Macpherson found in his report concerning the Met, institutional discrimination needs to be exposed for what it is.  It requires public scrutiny, it needs to be talked about and services have to be aware of how their organisation operates, at an institutional level, in generating an acceptable culture of discriminatory practice.

It is important, that where institutional discrimination is identified as a problem that no attempt is made to cover it up, silence complainers, or apply selective memory to recording particular incidents because of "...processes, attitudes and behaviour which amount to discrimination through unwitting prejudice, ignorance, thoughtlessness and  stereotyping..."

The UK Parliament held a Committee investigation into the progress made by the Police, in the ten years following the publication of the Macpherson Report. 

It was noted here that all but a few of the recommendations made had been implemented and had it not been for Sir Macpherson drawing attention to the problem through the label "institutional racism" little if any, progress would have been made. 

This is why it remains important to "call it out" wherever "institutional discrimination" is found. 

Only then can we move forward to generate positive solutions for overall cultural and thus institutional change.

Supporting Disabled Students

The end of August marks the end of school holidays, the beginning of many college courses and the start of the new university year.  

However, if you are a student with a Disability, some planning many have to go into the start of your academic year in order to facilitate the support you need to stay on course. 

First of all, it is important to remember that you are just as entitled to attend school, college or university as everyone else.

It is also important to always believe in yourself, you can do it.

Dyslexia as an Example

At times, the society we live in may make education difficult.

For example, if you are dyslexic and have difficulty reading, remembering and writing - the three "Rs" as far as Dyslexia is concerned - the need to hand in written work, read through pages of black and white text and then to sit a written exam on the subject, educational achievement may seem like a challenge.  However, it need not be.

In this case, you may be entitled to additional time with your course work, to additional time with written exams, to use a scribe, to additional toilet breaks if you need a breather, the use of a computer and assistive technology.

This list of support described above is by no means prescriptive nor is it exhaustive.

What the list reflects are the potential "reasonable adjustments" that can be put in place for you to help you stay on course.

Personal approach is necessary

It is also important to remember that no one person with a disability - whether it is dyslexia, a mental health condition, a physical support need or something else - is the same.  We are all unique, and with that, each of us may have different support needs.

Unfortunately, many school administrators like to group disabled students, misunderstanding that the support needs for one person may not be the same as those you require.  This can lead to some difficulty in determining what is "reasonable" in terms of the adjustments that any institution may have to make.

The Medical Model of Disability

For example, a number of years ago the issue of student mental health - as a disability - was hotly contested within the education sector.  There was, and still is, to some extent, a lack of understanding concerning mental ill health.

Many educationalists preferred to focus on the medical model; always seeking a diagnosis and determining from that whether or not mental health fell within the scope of "disability" in order to make any reasonable adjustments.

The over reliance on the medical model, is something that many more experience disabled activists will be familiar with.  For the sake of brevity, the medicalisation of a disabled person removes the personal, it dehumanises and it predominately sees the disabled person as a problem.

The Social Model of Disability 

This approach is contrasted with a social model of disability.  Under this model, it is society, with its focus on maintaining utility for the majority, that is actually the problem.

The majority of people are able bodied, do not use wheelchairs and  do not have support workers to enable day to day living.  This is why, amongst other things, buildings, services, educational assessments and the way our society operates are all designed to accommodate the utility for the majority.

The social model articulates that society is actually the disabling factor.  Unlike the medical model, the societal understanding of accommodation is the problem.  Importantly, the problem is not the disabled person themselves.

Mental Health as an Example

Returning to the example of mental health, the medical model almost entirely ignores the problems created by society in providing appropriate support - and reasonable adjustments - for people with mental ill health.

Additionally, the medical model also seeks to categorise - through diagnosis - the mental health problem in hand.  This means that people with depression, anxiety, bi-polar disorder or some other category are often grouped together rather than being looked at as individuals with personal support needs.

What is essential to providing support to any disabled person is that you have an understanding of the support needs for that person; not as a homogenised group of persons with a particular category code or diagnosis.

A student with a mental health problem may experience problems with motivation, concentration, memory and also experience fatigue and general ill health.  In order to support someone in this context, a support worker may be necessary, additional time for assessments allowed, no penalties for handing in work late or absence.  Again, this is not an exhaustive list.  

The Law

The legal position concerning reasonable adjustments is found in the Equality Act 2010.

The Equality Act is lengthy and for this reason, a summary of what it says is provided here; 

1. Disabled students are protected from discrimination - discrimination can either be direct or indirect.
2. Protection also extends to acts of harassment or victimisation for a reason connected with the disability (in some circumstances, the criminal law also provides protection).   
3. You do not need to be disabled yourself to benefit from protection; you are also protected from discrimination by association or a reason connected with the disability.   

Education providers, whether schools, colleges or universities must make reasonable adjustments to provide support for disabled students.  There is no prescribed list of what is reasonable and what is not, as this is always context and person specific.

In some cases, an education provider may decline to make a reasonable adjustment, if it is felt that the request is not reasonable.

If a dispute arises concerning a School, there are specific tribunals established to resolve a dispute.  Unfortunately, the tribunals do not have jurisdiction over colleges and universities.  In these cases, a dispute would have to be resolved through the local crown or sheriff court.

Getting Support

It is important to make contact with your education provider as soon as possible. 

The institution should then refer you to an appropriate service to seek support and discuss reasonable adjustments.  In many colleges and universities there is a dedicated student support service with disability advisers who can make recommendations.

It is important to be as open as possible about what support you may require.

The discussion you have is a two way process.  You do not simply have to accept what someone tells you, if you want something else or do not feel that it is appropriate.   

You may also be asked to provide evidence.  This is a reasonable request, but it should not be made too onerous.  For example, in the case of dyslexia a report summary from a Psychologist should suffice.  In the case of a mental health issue, a letter from a G.P.   

Please note, if you are told that the recommendations do not have to be accepted by the course provider, then this could constitute an unlawful act of discrimination, harassment or victimisation.  

The law says that reasonable adjustments must be made.  The law also prohibits discrimination.  Education providers are not given a choice about the law; it is there to protect you.

In Higher and Further Education, the Government provides a scheme called the Disabled Students Allowance (DSA).  The DSA provides funding for you to buy equipment, software and to access non medical personal help.  In order to access DSA funding, your education provider may have to refer you to a specialist assessment centre.

Once you settle into your academic year, you should be able to enjoy your course and fingers crossed, that with a little planning in advance, you get the support you need.     

The Equality and Human Rights Commission has prepared various guidance notes concerning Equality in the Education sector.  For more information, visit: 
http://www.equalityhumanrights.com/advice-and-guidance/new-equality-act-guidance/equality-act-guidance-downloads/
         
Caveat:  This article is not legal advice. 

Fish Fingers and Law

On Sunday 14th July a Highland Restaurant refused to sell a portion of Fish Fingers to a man because they were on the Children's menu.

The Man has Down's Syndrome and according to his family, can only eat small portions.  Fish Fingers are his meal of choice.

The Family have claimed that they were kept waiting for an unacceptable length of time and that the refusal to sell the Child's portion amounted to discrimination.  

The Restaurant have denied discriminating against the man and have stated publicly that they apologise and wish to make amens.  They have also launched a formal investigation into the matter and a representative of the family is currently in touch with the Regional Manager for the Hotel, of which the Restaurant forms part.  

Although, this case has been more widely publicised for the 70 thousand or so followers of the Facebook campaign which followed the incident, the facts here highlight the potential Equality and Discrimination law challenges within the Hospitality Sector.  

This article explores the some of the legal and practical issues faced in hospitality sector when presented with a potential case of discrimination.  

Legal Issues

It is important to remember that the Equality Act applies to the hospitality sector.  

Employment

The sector is an employer and a provider of goods, facilities and services.  The Equality Act states that it is unlawful to discriminate on grounds of disability and that discrimination can be both direct and indirect.  It is also unlawful and in some cases criminal, to victimise or harass someone because of their disability.  In order to avoid discrimination, there is an obligation as an employer to make "reasonable adjustments" for any disabled members of staff.

Reasonable adjustments for staff may include changes to a working pattern or the provision of auxiliary aids to enable a disabled employee to stay in work.  There is no prescribed list of reasonable adjustments because making the adjustments and understanding the support needs of disabled employees is very person specific.  

Providing Goods, Facilities and Services

There is also an anticipatory duty to make reasonable adjustments for disabled people as visitors, guests, clients or customers.  

This may mean ensuring that a building is fully accessible (wide enough corridors for wheel chair uses, the use of ramps and suitably sized lifts, appropriately located accessible toilets etc.). It may also mean that a conference venue is equipped with a hearing loop and suitable audio visual technology to allow disabled delegates to fully participate; not to mention that the venue itself is accessible (accessible does not mean requiring someone in a wheel chair to go around the back and use the servants entrance!) This is by no means an exhaustive list and should not be interpreted as such.  

The crux is that it is for providers of goods, facilities and services to anticipate the use of those services by disabled people, and to have make suitable adjustments in advance to allow that to happen.  

"DDA Compliant" does not exist

It is also important to keep in mind that there is no legal concept known as "DDA compliant" - and there never has.  This unfortunate use of phrase has been used by many to advertise that their services comply fully with the (former) Disability Discrimination Act.  

First of all, there never was a legal test of compliance within the Disability Discrimination Act.  It was and remains impossible to say that you are "DDA Compliant".  

The duty to make reasonable adjustments, whether for employees or as a provider of goods, facilities and services was an evolving one, continuing (it did not stop) and subjective (be it person, building or service specific).

There was no tick box list of what was reasonable and what was not.  There was no exhaustive list of what was a disability and what was not.  

Secondly, the Disability Discrimination Act has now been replaced by the Equality Act.  The duties under the former legislation continue in the new legislation.  

If something is described as "DDA Compliant" is usually means that it is not.  It demonstrates a complete lack of understanding of the relevant legislation and the legal obligations contained therein.  

Staff Training

Regular staff training is also important as part of the anticipatory duty.  For example, understanding that disabled people are not a homogeneous group, the term "accessible" does not just incorporate wheelchair users, that assistance dogs are not just for blind or partially sighted people and that some disabilities may in fact be hidden and not obviously apparent are all important to keep in mind.  For the avoidance of doubt, this is not an exhaustive list of items to be included in a training exercise.  

Taking this background into account, where does it leave the present case?  Is it discriminatory to refuse to sell a children's portion of fish fingers to a man with Down's Syndrome?

First all all, it is important to be clear that these cases of potential discrimination are rarely clear cut.  The approach taken below will be multi-faceted; examining arguments presented by both parties.  

The Duty not to Discriminate 

The Length of Time the Family had to Wait

One version of events suggests that from the outset, the group of three customers were kept waiting because one of their party was a man with Down's Syndrome.  

In this case, it is implied that the waiting time amounted to less favourable treatment.  

This would mean that the group were treated less favourably than the restaurant would treat another group of three people who did not have a man with Down's Syndrome within their party. 

If this was the case, then this would amount to unlawful discrimination.  

However, it is important to explore other potential reasons for the wait.  For example;

(a)  Was the restaurant short staffed?  

(b)  Did the staff know that group of customers were waiting to be seated and ultimately served?  

(c)  Could there have been a breakdown in communication between the front of house and the waiting staff?  

(d)  In all the circumstances, was the waiting time reasonable?  

Additionally, poor customer service, in itself, does not necessarily amount to unlawful discrimination.  

The Hotel management have stated that the party were seated and told that there would be approximately a 20 minute waiting time for food (15 minutes to cook and 5 minutes lay over in case of a problem).  

The Family do not dispute that they were told about the waiting time, but have argued this was because one of their group had Down's Syndrome and the Restaurant did not want to serve them.  

It is unlikely, that the waiting time on its own, would have amounted to discrimination.  

In order to be discriminatory, the group would have had to have been treated less favourably than others in the same circumstances.  A 20 minute food service window is not unreasonable if food is cooked from fresh and this has been brought to the attention of all customers.  

The Choice of Menu - Adult versus Child

The Children's menu is printed on the same card as the Adult menu.  It stated that Children eat for free on a Sunday and the restaurant's tills were programmed accordingly.  Children is defined by the restaurant as under 12s.  

The Family asked to order from the Children's menu because it had (1) smaller portions and (2) fish fingers - a food which the man with Down's Syndrome could eat without issue.  There was no fish finger option on the Adult menu.  

The Hotel claims that the server explained that because of the difficulty with the programming of the till, they could not offer a Children's portion of fish fingers but would ask the Chef to prepare a suitable alternative (Goujons) in a smaller portion.  

The duty to anticipate

It is reasonable to anticipate that some would be diners may have specific dietary requirements; some of which would be in consequence of a disability.  

In this sense, any restaurant would have to anticipate the possibility of offering non-menu item alternatives.  This may include, for example, offering something from a different menu, if available, or arranging for limited bespoke cooking depending on the circumstances of the case.  

In the circumstances, what is reasonable?

In determining whether or not a particular course of action is reasonable, it is important to consider a range of factors such as the proportionaility of making the adjustment, the availability of any alternatives, the practical difficulties posed amongst other factors.  

In this example, the Hotel did offer an alternative.  However, this has to be contrasted against whether or not making the requested adjustment (providing fish fingers from the Children's menu) would have posed any particular difficulty for them.  

The Children's menu was available in this case, notwithstanding potential difficulties with the Till system.  There does not seem to be any reason there for why the Hotel could not have offered Fishfingers as requested.

Equal treatment may still discriminate

The Hotel's point of view here is that the guest presented to them as an adult.  The staff in the Hotel therefore treated the man as an adult and explained that the Children's menu was reserved for the Under 12s.  

The Hotel is adament that no discrimination took place; they treated this guest in the same manner as any other adult guest.  

In these circumstances, a well intentioned stance of equal treatment for everyone, may have amounted to indirect discrimination.  This is where a provision, criteria or practice which applies equally to everyone places a disabled person at a substantial disadvantage compared to a non disabled person.  

The potentially discriminatory provision here is that the Children's menu is only available to under 12s; notwithstanding that some disabled would be diners may seek to order from that menu.

The Hotel did not make any adjustment to this provision and potentially, because the specific dietry requirment of this guest arose in consequence of his disability, could be said to have discriminated (even if that was not the intention).  

The Importance of Staff Training

As highlighted above, poor customer service in itself does not amount to discrimination.  However, ignorance of the law and in this case the multi-faceted obligations of the Equality Act 2010 is not an excuse either.  

This view is echoed by the Chief Executive of the Institute of Hospitality Peter Ducker:

“Good induction practices and staff training are essential to ensure your staff are diversity-aware.  Research shows that many of us are afraid of causing offence or not knowing what to do when interacting with a disabled person.
You might think that none of your guests are disabled so there is no real need for you to tailor your service to meet their needs.  But you would be overlooking the fact that, according to the 2011 UK census, one in six people has an ‘activity limiting’ health problem or disability.  In fact, many of your existing customers are likely to be in this group but you may not realise it.  Impairments such as arthritis, poor eyesight, back problems and autism are invisible and most people will not mention them when booking a room with you.
There is a common misperception that to become fully accessible requires investing huge amounts of money in widening doors and building ramps, but less than 10% of disabled people are wheelchair users.  If we think of accessibility in its broadest sense, some small changes can lead to your business being more welcoming to a wider range of people.
VisitEngland research shows that disabled people and their travelling companions spend over £2bn a year, accounting for 11% of all domestic overnight stays in the UK.   Disabled people stay longer on average (3.6 nights) than non-disabled people (three nights) and are more likely to travel with carers, relatives or friends and stay during quieter times.”

Useful Resources

For more information on the Equality Act and the legal obligations of the providers of goods, facilities and services, please visit the Equality and Human Rights Commission website: www.equalityhumanrights.com

The Hospitality Institute has also prepared three short training videos about valuing diversity in the sector.  These can be viewed online here: http://www.youtube.com/VisitEnglandBiz

  

   

    

Equality Act to encompass "caste" discrimination but not social or economic "class"

The UK Government has agreed to amend the Equality Act 2010 to include a new definition of Race to include a form of social stratification known as Caste.

The Enterprise and Regulatory Reform Bill is currently being negotiated through both the House of Lords and the House of Commons in the United Kingdom Parliament.

This Bill already contains a number of provisions designed to reform the work of the Equality and Human Rights Commission and also the repeal certain aspects of the Equality Act 2010 already in force.

The inclusion of Caste, as a new form of Race discrimination, was conceded by the Government. Although, according to the BBC report of the Government's position, Caste will not become a new protected characteristic in its own right.

The final position will not be clear until the Bill is agreed in the substantive by both Houses of Parliament.

At the moment, the Bill has been sent back to the House of Lords for consideration. This process is known as legislative "ping pong" whereby the Bill is sent back and forth until agreement is reached.

If agreement cannot be made, the Government reserves the right to utilise the Parliament Act. This is a legal mechanism created to prevent an indefinite period of legislative ping pong whereby the House of Commons "calls time" on the game if no agreement is reached.

The Government can only use the Parliament Act to push through legislation if no agreement is reached between both Houses of Parliament over the period of one year.

It remains to be seen to what extent the new definition of Race will truly embrace the concept of Caste.

No doubt, it will be left to the Courts to tidy up the legislative mess by a process of tactful interpretation of Parliaments's true intention.

It is disappointing, however, that other forms of social stratification have not been considered as part of the proposed reform. For example, social or economic class.

Given the Government's hostility to pro active legislative intervention and their refusal to bring into force the existing socio economic equality protections within the Equality Act, I doubt any further positive amendments will follow in the near future.

Secularism and religious intolerance

In today's guest Blog, Gordon Ellis writes about secularism, religion and Scotland.  

A former leader of the Anglican community’s 80 million adherents worldwide thinks that the government is "aiding and abetting" aggressive secularisation.

Lord Carey, a former Archbishop of Canterbury, also drew attention to a recent ComRes poll, which suggested "more than two-thirds of Christians feel that they are part of a 'persecuted minority'".

Secularisation of Scotland

A 2008 report on secularisation in Scotland highlighted that Western countries are going through a process of cultural change driven by growing wealth over the last decades, which has spurred economic independence for individuals.

Their overall dependence on other people and institutions, including the church and religion has, it is stated, accordingly, diminished. The report went on to state that not only the increase in wealth, but also increased mobility and the global information network have opened new doors to regular members of society. As a result, society is less influenced by the traditional ties and values that once shaped society. These trends are thought by the authors to have contributed to a substantial increase in secularisation in the west, including in Scotland.

Global events: Islam and the west

At the same time, global events such as the emergence of Al Qaida, the Taliban influence in Afghanistan and elsewhere, and terrorist attacks of 9/11 and 7/7, have focused very much on Islam in the negative sense.

There is as a result a feeling amongst many Muslims that Islamophobia is not taken very seriously and that because of their history as Muslims, terrorist atrocities and such, people feel like they deserve the abuse.

Despite all the negativity, Islam is stated to be the fastest growing religion with over 1.5 billion followers or 23% of the world’s population, and second only in size to Christianity. So, from Christianity and Islam alone, religion is a major influence on almost half of the world’s population, and, in that context, still very much a force to be reckoned with.

Personal experience

In 2005 I was helping the Muslim Community in the Highlands organise a summer school for young Muslims, to assist them in developing their cultural identity within the wider Highland diaspora. It was scheduled to start on 25 July, and 7/7 intervened.

My first discussion with the teacher from Birmingham who was to come to Scotland some three weeks later, was to convince him not to cancel the summer school, as the timing was not right for “moderate” Muslims to be potentially in the public eye.

I am glad to say that the summer school went ahead and was an unqualified success, culminating in the awarding by the Provost of Inverness of certificates of achievement to the participants in the splendour of the Inverness Town House, and wide positive publicity in the media for “moderate” Islam.
Hate crime against Muslims

A UK wide government-backed project set up in 2012 to monitor anti-Muslim hate has recorded 632 incidents in its first year.

Three-quarters of the incidents recorded by Tell Mama occurred online, with Twitter particularly highlighted as a source of abuse. In cases of verbal or street-based abuse those behind the project say it is Islamic clothing, like hijabs, that singles people out.

In January a pig's head was left in the garden of an Afghan family in London. There have been a number of incidents involving pork-based items being left at mosques and in December a cross wrapped in ham was left outside the home of a Muslim family in Bingham, Nottinghamshire.

Support from the Jewish community

What is encouraging is the support, which is apparent from the Jewish community, on whose monitoring model the Muslim initiative is based. The Community Safety Trust (CST), which has for almost 30 years been recording incidents of anti-Semitism in the UK has indicated:

"CST is glad that our work countering anti-Semitism has helped Tell Mama provide the Muslim community with a proper mechanism for reporting and understanding anti-Muslim hate crimes. It has taken CST nearly 30 years of focus and professionalism to get to where we are today, so what Tell Mama has achieved in just one year is very impressive.…. if our joint co-operation helps break down barriers between British Muslims and Jews, then all the better."

Muslims in Scotland

The Scottish Muslim population is dwarfed by the much larger 2.7 million in England and Wales. Immigration of Muslims to Scotland is relatively recent, the bulk of Muslims in Scotland come from families who immigrated during the late 20th century.

The 2011 census analysis published by the Scottish government, indicates that In Scotland Muslims represent 0.9% of the population (42,557), with 30,000 in Glasgow (there are 10 times this number in Birmingham alone). Many Scottish Muslims are of South Asian descent primarily hailing from Pakistan, whose well documented political turmoil is rightly or wrongly associated with the more “extreme” adherents of Islam.

Islam misrepresented

In 2006, the Scottish Communities Minister opined that Islam is often "misunderstood, misinterpreted and misrepresented" and that anti Islam comments or abuse would not be tolerated in a Scotland which values religious diversity.

Notwithstanding, I am aware that many Muslims still feel vulnerable.

Indeed, there appears to be an increasing groundswell of opinion in the Muslim community in England, that the government does not offer the level of support that is justified by the vast majority of “moderate” Muslims, but chooses to focus on the radicalised minority and their excesses, both in the UK and abroad, for purely political ends. This would seem to accord to a considerable extent with what is being said by Lord Carey in respect of the government attitude to Christianity and the Christians’ feelings of persecution.

Religion: challenges from change

Like society at large, religion is looking to address change and challenges which are now on a global scale. The new Pope Francis has focussed very much on social justice, and a simpler “back to basics” approach. Included in the group that prayed with Pope Francis at the crypt of St Peter at his inauguration was the Ecumenical Patriarch of Constantinople, Bartholomew. It was the first time since the split between the Eastern and Western churches in 1054 that the leader of the Eastern Orthodox churches has attended a papal inauguration.

Different denominations, and different religions, share many of the same challenges - scepticism and indifference for example - in the increasingly secular Western world.

In order to move with the times, and contribute to the development of a society which does not tolerate inequality or discrimination, as well as having the mechanisms in place to deal with it, churches, I would suggest, have a potentially pivotal role to play, but need to work smarter, and of equal, perhaps greater importance, together.

Positive change

On a positive note, with particular reference to Scotland, I am reminded of an Aberdeen Episcopal Church which recently opened its doors to local Muslims whose adjacent mosque was too small to accommodate them.

Despite unwarranted, primarily online, criticism from some, Muslims and Christian worshippers at St John's Church hope their special relationship could serve as a model for the rest of the country. Indeed, the Episcopal Bishop of Aberdeen and Orkney, Dr Robert Gillies, said the arrangement at St John's could serve as a lesson for the rest of the world.

''What we are doing here, is something local that has global significance,'' he said.

''We have demonstrated that Christians and Muslims do not have to agree with one another. But they can learn to respect each other's different beliefs and actually come to get along and even like one another." Take note, please, the religious persecutors of Indonesia, Southern India and Sri Lanka and Burma.

Religious tolerance in Scotland

In Scotland, religious tolerance even within the various Christian communities has proved challenging enough, the West of Scotland catholic protestant anxieties, and the splits within the Free Church, for example.

To add to the mix the impact of globalization and the influence of an increasingly diverse ethnic community, including Islam, contributes considerably to the difficulties of applying the requirement to “the fostering of good relations between individuals who share protected characteristics”, in this case religion and belief, of which the Aberdeen initiative is an excellent example. As if that is not enough, one must add the complicating dimensions of same sex marriage, women priests, celibacy and historical allegations of abuse.

Fostering good relations - Equality Act 2010

Interesting times lie ahead for religion, within and outside Scotland. In that context, the government, which is subject to the equality duty to foster good relations between individuals who share protected characteristics and for removing or minimising disadvantages suffered by people due to their protected characteristics, needs to play a more proactive part in addressing the legitimate concerns of both Christians and Muslims that they are being increasingly subject to persecution.

GORDON ELLIS, APRIL 2013

Law Society is not above the Law

The Annual General Meeting (AGM) of the Law Society of Scotland (The Society) recently took place in Edinburgh.  

At the AGM, a report was submitted for approval.  The report argued for separate representation of the Borrower and the Lender in a residential conveyancing transaction.  

This would mean that each party would have to have their own Solicitor.  

Currently, one Solicitor can represent both parties.

The Council of Mortgage Lenders (CML) also opposes the move to separate representation.

In my view, not enough consideration had been given to either the Equality or Human Rights implications of such as move.

Previous experience

I had attended the previous AGM, where I spoke from the floor of the importance of fulfilling legal obligations under Equality Law and also Human Rights Law.

I was given an assurance, following the issues raised, that the Society would, in future, publish both Equality and Human Rights impact assessments concerning any proposals being brought forward.

Indeed, earlier in the week, I had discussed this very point with the Society's Director of Representation and Support.

I am disappointed, that to date, the approach taken by the Society has been lacklustre.

I acknowledge that attempts are under way to make improvements, but I would have expected that such an important report, would have mentioned both human rights and equality elements.

Legal obligations

Unlike its counterpart in England and Wales, in Scotland, the Society operates as a Public Authority in terms of the Human Rights Act 1998. The Society is a Public Authority in respect of its regulatory and supervisory function of the Solicitor profession in Scotland.

The Society must have regard to the Convention Rights, namely those set out in the European Convention on Human Rights and Fundamental Freedoms.

By extension, the Law Society is also a Public Authority under the terms of the Equality Act 2010.

A Public Authority here, must have "due regard" to (1) the promotion of equality of opportunity, (2) the elimination of unlawful discrimination and (3) to foster good relations between groups who share protected characteristics (The General Duty).

There are also a series of "specific duties" which give teeth to the General Duty.

The Society acknowledges that it has to comply with the General Duty.

The Society also acknowledges that it has to comply with Convention Rights.

However, at today's AGM, as in the past, no evidence was presented that either obligation had been complied with.

Why are these obligations important?

In the present case, a proposal to approve the report of the working party on separate representation was presented to the meeting for endorsement.

The report, recommended making changes to the Professional Practice Rules to ensure that Solicitor's avoid conflict of interest by not acting for both a mortgage lender and a house purchaser.

It seems obvious, that in order to avoid an apparent conflict of interest, that a Solicitor either represents the borrower of the money - the house purchaser - or the lender of that money.

The Solicitor should not do both.

However, the case is actually more complex that the simple aim of avoiding a potential conflict of interest.

Human rights element: proportionality

As a Regulator, acting in the public interest, the Society needs to adopt a proportionate response to achieving a legitimate public policy aim.

It is not enough to simply say that avoiding a potential conflict of interest is a legitimate aim.

No one would disagree that there have to be rules concerning avoiding conflict of interest; what is important, is the way in which that aim is achieved - the response to achieving the aim must be proportionate.  

This is important, from a hypothetical house purchaser's point of view - keeping costs low and also needing to access a local Solicitor who would be willing to represent them.

It is also important from the point of view of any hypothetical Solicitor, who is potentially already being squeezed financially as a result of the current economic climate and may not be so keen on taking on low value work such as a first time purchase, the purchase of sheltered accommodation or negotiating the sale of a former matrimonial home.

Equalities element: avoiding indirect discrimination

It may be more expensive to buy a house if a client is forced to travel to appoint a Solicitor or if they are forced to pay more than one Solicitor for carrying similar legal work.

Whilst any requirement for separate representation would be applied equally to everyone seeking to buy a house, it could potentially have a disproportionate effect on younger people seeking to enter the housing market, disabled people seeking to buy supported accommodation or people getting separated or divorced.

Rural and high street practice: negative impact on wider legal representation 

Also consider the case of a hypothetical Solicitor engaged in rural or high street practice.

That Solicitor may rely upon the "bread and butter" income from conveyancing. That income too, may also be used, albeit indirectly, to subsidise other areas of practice, such as legal aid work or family law.  It could also mean the difference between keeping an office open in one location or closing down and centralising services elsewhere.

By restricting the type of domestic conveyancing work, the hypothetical Solicitor is now faced with a potential loss of income and has to decide whether or not to remain in practice or to close down the areas of work that were previously indirectly subsidised.

This would present a greater challenge for access to justice.

There is no merit in arguing the pros and cons of separate representation if there will be no one around to provide that representation in the first place.

No mention of human rights or equality


If a proper assessment of either Human Rights or Equality had formed part of the working group's report, it should have been in the report. There was no mention of it.

A proper assessment would have looked at the fine balancing act between being a Regulator and also the responsibilities of the Regulator to both act proportionately and also not to discriminate, albeit indirectly and to promote equality amongst other things.

I have shown the potential for both a human rights and equality impact stemming from the published report.

I was disappointed that I again had to ask why the Society had no considered both important legal obligations.

Future proposals

The Society's working group will now take forward the question of separate representation.

It is likely, whether in the near or distant future, that a concrete proposed rule change will be tabled for approval.

I do not want to have to stand up again, at this time in 2014, and ask where is the relevant human rights or equality impact assessments.

The Law Society is not above the law.

The Society must show evidence to demonstrate that it has had "due regard" to the obligations described above.  The recommended way of doing this is to publish equality and human rights impact assessments.

It is now time to change decades of inherent bad practice in the Society.

If the Society acts in the public interest then the Society must respect both Human Rights and Equality.

Parliament and the public expect this too.