Equality Act Update to include Neurodiversity as protected characteristic

Okay here’s my understanding; neuro diversity as a category will almost invariably fall under the equality act.

The equality acts definition of a disability is “A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”

Important thing to remember is that when they talk about Ps ability to carry out normal day-to-day activities they mean relative to what P would have been without the impairment not relative to people in general.

So for example consider an athlete who twists his ankle and permanently injures it leaving him unable to compete in Olympic events. Competing in Olympic events is not a day-to-day activity. So you might think that if the athlete can still do normal day-to-day activities like walking to the shops he is not disabled. However that’s not necessarily the case because if this athlete now takes 10 minutes to walk to the shop where is before he took five, if walking to the shops now involves a lot of pain which an ordinary person might struggle to bare, but this guy because he’s dealt with years of painful athletics he’s able to bear, then in comparison with his life before he might now be disabled.

The effect on his life, on his ability to walk to the shops is more than trivial and therefore substantial. that is the definition of substantial in the equality act.

Autism affects the ability to socialise to interact with people in a social setting which is a normal every day activity. ADHD affects your ability to focus, to do paperwork, to respond to letters and emails which are normal every day activities. Tourette’s will affect one’s ability to simply be in a public space without attracting attention and possibly causing offence which is an every day activity.

Nerodiversity is always going to fall under this definition of disability whether or not you like it. And that really is a point isn’t it. it’s not a question of whether or not the equality act protects neuro diverse people. what people seem to be objecting to here is whether or not neuro diverse people should be classified as disabled.

I understand that argument from a philosophical point of view  you can argue that Neurodiversity is more a kin to race than a disability. It’s a physiological characteristic, albeit an invisible one, which marks people out as being different from their peers and is very often hereditary. It confers a mix of advantages and disadvantages in different situations. Much in the same way black people in the north generally have poor vitamin D levels but at the same time are very resistant to sunburn and skin cancer.

Of course unlike race there doesn’t tend to be a shared language or shared culture or even necessarily a shared geographical location.

But the point I am making is pragmatically disability law is far more suitable for protecting neuro diverse people than any other form of discrimination law in the equality act. Only disabled people benefit from reasonable adjustments and from section 15 which prevents them from being discriminated against because of things that happen because of their disabilities.

I do not think it is worth messing with a well tested piece of legislation for the sake of applying a different label so people can feel better about it. Especially if the functional effect might possibly be that neuro diverse people actually have less protection because their new category is interpreted differently by the courts compared to disability.

As I’ve said before the real issue with Nero diversity is as an invisible disability it is not something that there is a particularly good level of awareness of amongst other people who are obligated to make concessions and special arrangements for neuro diverse people. It’s also conceptually a lot more complicated than other disabilities like being confined to a wheelchair which means that courts are more likely to require special experts and to want to take much longer and more involved trials to look at cases involving Neurodiversity.

So the issue really is that the lack of awareness and the lack of simplicity means that Neurodiversity cases under the equality act are almost always going to go to court, as opposed to out of court settlement, and almost always going to go to the fast track which is expensive and involves real financial danger for those who bring the cases.

Unlike a disabled person in a wheelchair who can probably expect to see his lawsuit under the equality act seen in the small claims court where he can have confidence he is very unlikely to have to pay for the other sides lawyer the average person with Neurodiversity is probably going to face an up hill struggle to get to the other side to take their case seriously and is probably going to have to go to an expensive court where they will require a lawyer and may end up having to pay for the other sides lawyer if they lose.

That is why in my opinion the most important thing that we can do to improve the equality act is to make sure that people have better awareness of how neurodiversity fits into it and to change procedural rules so that qualified one-way cost shifting now applies to equality act cases. We already have qualified one-way cost shifting for personal injury cases that is why you can get a no-win no fee arrangement. And the basic rule is if you win they pay for your lawyer, if you lose you don’t have to pay for their lawyer.

I notice there is a petition for qualified one way cost shifting in equality act cases right now on the petition Parliament website. <_< maybe you should all go sign it.

I understand what you are saying but the idea here is not to take away the capacity of people claiming disability but instead add an additional lenses.

Could you make the case that someone who is being discriminated against for having narcissistic or psychopathic traits is protected under the equality act (I guess my question here is can they claim disability) ? or someone who does not possess a diagnosis and doesn't want to subscribe to a medical model is protected under the equality act?

We want to expand the lenses and not force people who are only circumstantially disabled to have to claim a disability and having to prove it in court. I do not subscribe to the medical model I have never been diagnose and yes I possess autistic traits shouldn't I be able to be protected?

The Flower Umbrella said:

Could you make the case that someone who is being discriminated against for having narcissistic or psychopathic traits is protected under the equality act (I guess my question here is can they claim disability) ?

Probably yes. So the definition of disability in the equality act is a physical or mental impairment that has a more than minor and long term effect on your ability to do normal day to day activities. Day to day activities includes maintaining normal social relationships with friends and colleagues. So if an impaired ability to say, rationally recognise your own flaws, or experience empathy for others impaired your ability to have a normal social life with others yes it could be a disability under the equality act.

The Flower Umbrella said:

or someone who does not possess a diagnosis and doesn't want to subscribe to a medical model is protected under the equality act?

You don’t need a diagnosis for the equality act to apply. The law requires the impairment exist but it doesn’t have to have a specific medical label although courts typically do want some sort of medical testimony to verify the impairment exist there doesn’t need to be a formal diagnosis. And that testimony doesn’t have to go on your NHS record if you don’t want it to. You certainly don’t need to have a diagnosis at the time for discrimination law to apply but many people who sue under the equality act find it easiest to get one before court if they are suing.

The Flower Umbrella said:

We want to expand the lenses and not force people who are only circumstantially disabled to have to claim a disability and having to prove it in court.

I can’t see any neurodiversity self identification rule applying if that’s what you mean. Even if neurodiversity was a separate category I’m sure lawmakers and courts would still want some kind of proof that some one was neurodiverse.

you keep saying claim but that’s not quite the right word. One can request reasonable adjustments. And one can claim discrimination. But for the avoidance of doubt the criteria for disability for benifit claims are not delt with by the equality act.

Respectfully the judgment that judges make (in civil cases) is whether something has been proven. The standard of proof in civil cases usually being more likely than not. Whether you ask a judge to accept someone is disabled or neurodiverse he still makes a judgment based on the evidence. And I don’t think a judge would be more or less likely to accept self diagnosis as neurodivergent than self diagnosis of disability.

judges are able to accept self diagnosis of disability in equality act cases, they have done so, rarely. I don’t think that would be different with neurodiversity.

Is not trust, it is judgement. Proving is different from judging. You can judge a situation without needing proof. That's why we have judges. They are practiced in judging not in proving. 

Evidence is part of it but in this case you can give evidence of discrimination instead of focussing on evidence of protected characteristic.

Is not trust, it is judgement. Proving is different from judging. You can judge a situation without needing proof. That's why we have judges. They are practiced in judging not in proving. 

Evidence is part of it but in this case you can give evidence of discrimination instead of focussing on evidence of protected characteristic.

Respectfully the judgment that judges make (in civil cases) is whether something has been proven. The standard of proof in civil cases usually being more likely than not. Whether you ask a judge to accept someone is disabled or neurodiverse he still makes a judgment based on the evidence. And I don’t think a judge would be more or less likely to accept self diagnosis as neurodivergent than self diagnosis of disability.

judges are able to accept self diagnosis of disability in equality act cases, they have done so, rarely. I don’t think that would be different with neurodiversity.