APPENDIX 4
Memorandum submitted by Diabetes UK (EDP
06)
Diabetes UK is one of Europe's largest patient
organisations. Our mission is to improve the lives of people with
diabetes and to work towards a future without diabetes through
care, research and campaigning. With a membership of nearly 180,000,
including over 6,000 health care professionals, Diabetes UK is
an active and representative voice of people living with diabetes
in the United Kingdom.
FACTS ABOUT
DIABETES
— Diabetes, which affects 3% of the
UK population, consumes between 5% and 10% of total health care
resources.
— Diabetes is set to increase. It is
predicted that diabetes prevalence will double world-wide, rising
to at least 5% by 2010, accounting for 3.07 million people in
the UK.
— Diabetes affects the young and old,
and has particularly poor outcomes in those of lower socio-economic
status and in those from black and minority ethnic groups.
EXECUTIVE SUMMARY
OF KEY
POINTS
— People with diabetes are excluded
from the workplace to a surprising extent, often in the form of
blanket bans on recruitment, including in the emergency services.
— The Government's recently proposed
amendments to the DDA represent a significant step forward in
the fight against disability discrimination.
— The proposals do, however, fall short
of comprehensive protection secured by primary legislation.
— While the proposals signal the end
of certain blanket bans, they do not guarantee that alternative
systems based on case-by-case medical assessment will be transparent
and fair.
— Diabetes UK calls on the Government
to allow Employment Tribunals to apply an objective test of what
constitutes a fair medical assessment.
1. BACKGROUND
1.1 Diabetes UK is delighted the Select
Committee for Work and Pensions has launched an inquiry on the
effectiveness of Government policy in increasing employment rates
of people with disabilities.
1.2 People with diabetes are excluded from
the workplace to a surprising extent, often in the form of blanket
bans on recruitment to certain professions, including the armed
forces and the emergency services. People who are already working
in these industries when they are diagnosed can lose their jobs,
or be moved to other less rewarding positions.
1.3 These blanket restrictions are usually
imposed on safety grounds, drawing on the false assumption that
all people with diabetes are equally liable to sudden episodes
of severe hypoglycaemia (low blood glucose) leading to so-called
"diabetic coma". This incorrect assumption means that
the individual circumstances of job applicants are rarely taken
into account. Perfectly fit and capable people with diabetes are
barred in exactly the same way as those with poor diabetes control.
1.4 For potentially hazardous occupations,
Diabetes UK advocates case-by-case examination of medical fitness,
as a safe, fairer alternative to group restrictions. Diabetes
should not form an automatic barrier to such employment, provided
the individual manages the condition well and has good hypoglycaemic
control.
2. AMENDMENTS
TO THE
DISABILITY DISCRIMINATION
ACT 1995
2.1 Most people with diabetes do not regard
themselves as disabled. Nevertheless, people with diabetes are
protected under the Disability Discrimination Act (DDA) 1995 because
people with diabetes face discrimination in the workplace through
ignorance about the condition. Part II covers employment, making
it unlawful to discriminate on medical grounds. Unfortunately,
the seven million people working in small businesses, police officers,
fire fighters, prison officers and others are not safeguarded.
2.2 The Article 13 European Employment Directive
(2000/78/EC, 27 Nov 2000) which covers conditions for access to
employment and occupation, and applies to both public and private
sectors, regardless of the size of the organisation and to "occupations"
(ie not just "employees"), has to be implemented by
2 December 2006 in relation to disability.
DIABETES UK'S
POSITION
2.3 Diabetes UK is pleased that the Government
has drafted comprehensive regulations to amend the DDA to meet
the European Employment Directive's requirements, which will do
much to improve the life-chances of disabled people, including
people with diabetes, seeking employment across a number of occupations.
2.4 In particular, Diabetes UK welcomes
the clarity with which the draft regulations will end the exemption
of small employers, fire service, prison service and police forces
from the DDA from October 2004, with the result that it should
no longer be possible for such employers to operate a "blanket
ban" on the employment of people with a particular disability.
2.5 However, Diabetes UK has strong concerns
with the proposals as they stand, which fall short of comprehensive
protection which could be secured by primary legislation.
2.6 In particular, the proposed amendments
retain the current DDA approach permitting employers to justify
less favourable treatment, and simply add an exception which states
that "less favourable treatment of a disabled person cannot
be justified if the reason for it is not based on a consideration
of that individual's abilities, but is instead merely because
he has a disability". While these amendments might signal
the end of certain blanket bans, they do not guarantee that replacement
systems based on case-by-case medical assessment will be transparent
and fair.
2.7 As employers still have considerable
scope to justify "less favourable treatment", we call
on the Government to allow Employment Tribunals to objectively
judge what constitutes a fair medical assessment. Diabetes UK
agrees with the Disability Rights Commission that:—
"less favourable treatment on the basis
of a disability should only be permitted where an employer shows
the disabled person is not competent, capable, or available to
perform essential functions, taking into account the employer's
reasonable adjustment duty".[3]
2.8 If this issue is addressed, and employers
are thereby compelled to carry out fair, transparent, case-by-case
medical assessment, the jobs, livelihoods and life-chances of
people with diabetes and other medical conditions will be far
more secure in the years to come.
2.9 Diabetes UK also welcomes the regulations'
intention to cover employees on ships, planes and hovercraft registered
in GB, and asks the Government to develop proposals on how to
achieve this as soon as possible.
3. CONCLUSION
3.1 Diabetes UK welcomed the Government's
recently agreed Public Service Agreement target for the Department
of Work and Pensions:—
"In the three years to 2006 [to] increase
the employment rate of people with disabilities, ... and significantly
reduce the difference between their employment rate and the overall
rate."
3.2 As a result of the blanket bans that
are still in operation within the UK, however, thousands of people
with diabetes are turned away unnecessarily from work each year—to
the frustration of the applicant and the ultimate detriment of
their would-be employer. The Police Federation estimates that
upwards of 150 applications from people with diabetes to join
the police service are turned way each month.
3.3 The Government's work in amending the
DDA in light of the European Employment Directive is a positive
step in tackling disability discrimination. While the proposals
signal the end of certain blanket bans, however, they do not guarantee
that alternative systems based on case-by-case medical assessment
will be transparent and fair.
3.4 Diabetes UK calls on the Government
to allow Employment Tribunals to apply an objective test of what
constitutes a fair medical assessment. Without this, the Government
will risk not satisfying the spirit of its obligations under the
European Employment Directive, and certainly will have not gone
far enough in discharging its PSA objective to assist people with
disabilities into work.
Ruairi O'Connor
Public Affairs Officer
20 December 2002
3 Disability Rights Commission Briefing on "Equality
and Diversity: The Way Ahead" November 2002. Back
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