The Equality Bill: How disability equality fits within a single Equality Act - Work and Pensions Committee Contents


Examination of Witnesses (Questions 80-99)

MR RUPERT HARWOOD, MR PETER PURTON AND MR JAMES SANDBACH

2 FEBRUARY 2009

  Q80  Chairman: Access to Work does not fund addressing bullying.

  Mr Harwood: No. What I am saying is that if there are problems with people with mental health problems getting sick in work and not being able to continue, in addition to providing those people with individual assistance, as I understand is being discussed and is starting to happen, it would be useful if the people from Access to Work with their expertise are able to sit down with an employer and say—it does not just have to be bullying—"Is there anything wrong with your work environment and your organisational arrangements which is leading to a lot of people becoming sick with mental health problems or other health problems? Can we address that so we do not have to keep coming back and providing more assistance?"

  Q81  Chairman: That is a completely separate issue from Access to Work, I think. Can I move to you, Peter. A year or so ago the Government announced that they were going to withdraw Access to Work funding from public bodies and the TUC said this would have a catastrophic consequence for disabled workers. Have you been proved right?

  Mr Purton: What we said was the withdrawal of Access to Work from the public sector would have catastrophic consequences. The pilot that was undertaken within central Government ministries was clearly understood—certainly as we read the material out at the time—as a pilot for what would happen if you withdrew it from the public sector more broadly. The basis of our view was, and is,—

  Q82  Chairman: But have you been proved right in your forecast?

  Mr Purton: If I may answer the question my way. We do not know what has happened in the central Government ministries because we are still waiting months after the original date for the evaluation report. In the broader public sector our concern is precisely that we have many examples of public sector organisations which are not fulfilling their obligations even under the existing DDA, let alone the equality duties, in many cases because of budget restrictions.

  Q83  Chairman: I am sorry, can I stop you because you are drifting off from Access to Work. As a principle, is it not right that the public sector should be a top class employer and you do whatever is necessary without relying on taxpayer funding? As a principle should they not set an example?

  Mr Purton: Absolutely they should.

  Q84  Chairman: So they should not be drawing down Access to Work funds. Would it not be better to apply what funding is then not in the public sector to particularly the SME sector?

  Mr Purton: If that were the reality, that the public sector were model employers, the 44,000 organisations we are talking about were tackling disability discrimination in the way we would like them to, I would completely agree that is what we should do tomorrow but, unfortunately, all the evidence we have from many unions operating in the public sector is that is simply not the case. A key issue for that is the resources question. I did check this before coming, the 2005 Court of Appeal Case Murphy v Slough Borough Council, a very important case, which determined that when it came to a school, of which there are many thousands of public sector bodies in this country, the school was saying, "We have not got the resources to employ this disabled person" and the Court of Appeal said, "No, that is fair enough, the school is the budget holding body. We do not take into account the resources of the local education authority, we are simply talking about the resources of the school". That is something which has been replicated time and time again across small, budget-constrained public sector organisations. If they are denied access to the Access to Work scheme, the consequence in the present circumstances will be catastrophic for many disabled people working in the public sector and many who would want to work in the public sector. It has not happened in the ministries because, as the Minister told us last week when we met him, you would expect central Government departments to be the beacon of good practice and we are hoping that the evaluation might tell us that is the case; we will wait and see. Certainly out there, for the other 44,000 bodies, some of them very small with their resources constrained, this will not be the consequence.

  Q85  Chairman: So it is leadership?

  Mr Purton: It is leadership, resources and understanding.

  Q86  John Howell: Let me stay with the public sector. You have outlined a whole lot of problems there, but can you give us some examples of where you think the Disability Equality Duty is actually working well in the public sector?

  Mr Purton: We did a survey of trade union responses and it was only six months after the duty came in, so it was quite new, but we have also looked at the evidence that the Office for Disability Issues (ODI) has published and the Equality and Human Rights Commission has adduced in its studies of the Secretary of State's reports, and they all point to the same picture of the public sector. There are some excellent organisations, first class examples of doing exactly what the equality duty is meant to do, a proactive engagement in—

  Q87  John Howell: Such as?

  Mr Purton: —various ministries, some health authorities, some higher education institutions. I have not got the list, but there are plenty. There are plenty more in the middle who are treating it as a tick box exercise, "We have to comply with this duty", which means they are halfway there, if you like, but also halfway not there. Then there are the laggards who are really not complying with their legal obligations at all and these presumably fall among the 170 public sector bodies that we understand the EHRC is currently investigating for failure to comply with the duty nearly three years in. I cannot name the organisations, I am afraid, but they are in those reports that have been published or announced.

  Mr Sandbach: One of the things that does need to be done is a little bit of pushing and shoving on the public duties. When that pushing and shoving takes place the evidence suggests that some public authorities will respond. I can think of one case where a little bit of pushing and shoving from the Bureau persuaded a council to make a car park accessible and another local authority where a little bit of pushing and shoving from the Bureau persuaded a council to change its policy on letting disabled people's carers into the swimming pool without charging them double. With a little bit of pushing and shoving the public duties are effective, but the problem is that pushing and shoving does not occur a lot of the time.

  Q88  John Howell: Hang on a minute. The picture that I am getting from you is essentially a negative one. I am all for pushing and shoving and that will play its part in small boroughs, but essentially the picture that has come across to me so far from what you have said in this session is a negative one, there is nobody out there doing it really well without having to be pushed and shoved. Is that really the picture?

  Mr Sandbach: To a certain extent, yes. There are certainly a plethora of equality schemes in the public sector and they publish documents but, as my colleague said, too often they are very much a tick box exercise that is done at one particular stage and in one particular department but there is not a mechanism to see those schemes through.

  Q89  John Howell: Is that not largely because public sector organisations have consistently failed to see the difference between outcomes and outputs?

  Mr Sandbach: Yes, I would agree with that.

  Mr Purton: I would endorse that. The proportions, plucking these figures sort of out of the ether, if you like, we could maybe talk about 10% of organisations which are really good across the public sector, 10% which are probably really bad and the rest somewhere in-between. We are only into the third year of this duty being in existence, we are not yet at the point at which those original equality schemes should be monitored and evaluated. When we get to that point that will give us a clearer picture of where we are at. As we said, the difficulty is there are 44,000 organisations and one EHRC to monitor them all. It is going to be hard work to collate this information.

  Q90  John Howell: Given that, how are you going to ensure that the best of the current Disability Equality Duty is transferred over into a single duty?

  Mr Purton: The key point is to get across two messages. One, no retreat from the good things that are there in the duty which, if they were complied with, would mean the public body was doing what it should be doing in a proactive way. The other is the understanding that in the legitimate rush to harmonise, to iron out the differences between the different equality statutes, which we support, they should not lose sight of the specificity of disability and the fact that you have to treat disabled people more than equally in order to achieve an equal outcome much of the time. That specific nature of disability discrimination has to be reflected in the Act as a whole, but specifically around the duties and in the drafting of the duties, particularly with regard to the specific duties when we get round to doing them later this year. We have not got a clue what is going to be in them at the moment. For us, that is the essential step. We have got to preserve that. If we lose that in the rush for harmony then the advances that have been made will not be spread and there is a risk indeed that they will be falling back. I did not want to be negative in saying there were not many good examples, because there are many good examples, but what we want to do is highlight the good examples and hold them up as exemplars to our organisations to follow and that is a role the Government can play.

  Mr Sandbach: One of the important messages, the powerful message of an integrated Equality Duty is that you cannot just cherry-pick equality and you cannot cherry-pick this group or that group. Nevertheless, what also needs to be clear in the way the duty is framed is that does not mean this is an excuse for dropping reasonable adjustment because we are complying with the general duty. There is quite a fine balancing act that the Equality Bill needs to meet in that respect.

  Mr Harwood: It is a mixed picture. It only came into force relatively recently and it did seem to take quite a bit of time for the Race Equality Duty to start to happen, in fact, and that came in in 2001. Our concern is some of the weaknesses of the equality duties will be carried over into the Equality Act and some of its strengths will be attenuated. Our particular concern is the understanding which is consistent with the decisions in BAPIO and Elias, that all the duties require an assessment of proposed policies but the duties do not necessarily in law require that subsequent action be taken after that assessment. For example, you could have a public authority which is excellent in terms of promoting equality but it does not assess all of its proposed policies in terms of an equality impact assessment and it might, therefore, be breaching the duty, or you could have an authority which assesses all its policies and procedures that is appalling in terms of equality but it would be compliant. What we are saying is that it should look at subsequent action as well as the need for an assessment.[2]

  Q91 John Howell: That brings me on to the next bit of my question. I am not sure I totally understood what you were saying about what is the best way of enforcing this when it came up in the Chairman's question earlier.

  Mr Purton: Enforcing the duty?

  Q92  John Howell: Yes.

  Mr Purton: We would say that the Judicial Review that is currently available for enforcement of the general duty is an essential tool that needs to be preserved and it needs to be clear in the new legislation that all interested parties, and we would include a relevant local trade union, should have the right to follow that route. In terms of how you are going to do that across the board, clearly there are some major issues in terms of the resources available to the EHRC in terms of its enforcement powers and at the moment they are not adequate. The powers are adequate, but the resources are not. We need to look at that. In terms of enforcing specific duties, at the moment within the trade union movement we are thinking about how best to extend beyond the current restriction of that to the EHRC. There are a number of issues there and we would need to see what the duties were before we could come up with a cast iron view on how they should best be enforced.

  Q93  John Howell: What I understood you to say earlier was that one level of enforcement was to bring it back to individuals taking claims to tribunals and now you are saying Judicial Review. I have to say, I find that an incredibly confrontational way of achieving enforcement. Surely you must have thought of some other way that is going to achieve that without going to those extremes.

  Mr Purton: Absolutely, and we would not use the word enforcement in those cases. My apologies if I misunderstood you but it was because you used the word in the question. We would say as well that a public body that followed the good advice that has been given to it on its duties to involve disabled people, to involve its workforce and its trade unions in the drawing up of its equality plans and their implementation, would not need to be worried about enforcement because it would have everything in place to carry out the scheme successfully. We would add within that, banging on an old drum as the TUC has done many times before, equality reps are now being developed within the workplaces around country and if they were to get statutory recognition, which unfortunately they currently do not have, they could play a major part as well in working with the employer in the public authority on their equality schemes in a collaborative way to get the best out of the collaborative outcome. That would be a much more constructive approach than having to find the enforcement mechanisms that we have to have as well as a backstop, but only as a backstop.

  Q94  John Howell: I do not want to push this one too far, but, in my experience, where local government is involved in their equality duties, the major problem has been in order to get to the position you need to be in for the level three equality tick-off all you have to do is produce a scheme and that is the assessment by Government of whether it works or not. What do you want to see changed there?

  Mr Purton: This is a question of changing culture. As we have said throughout this evidence, all of this is about changing the culture so that you do not need to resort to enforcement so that the employing body understands what it is trying to do, which is written down as the basis of what these equality schemes are meant to be and I am sure will be in the new Act as well. They are doing it in order to make the changes that need to be made both within their service delivery and in their employment practices. If they understand what they are doing it will improve their service and their efficiency and everybody wins.

  Q95  John Howell: Let us look at that in a specific example. Rupert, your organisation has been very hostile to DWP, if I can say it that way—

  Mr Harwood: Hostile to some things.

  Q96  John Howell: —because you think it is breaching its duty.

  Mr Harwood: Yes.

  Q97  John Howell: And you want something specific to DWP.

  Mr Harwood: Yes.

  Q98  John Howell: Could you explain how you come to that and why you think that is the right outcome?

  Mr Harwood: What we are looking at at the moment is whether DWP and its contractors may be discriminating against welfare benefit claimants with mental health problems. The impression we get is that could be happening to quite a large extent. Also, it could be counterproductive in that it might be making it harder for claimants to participate successfully in training programmes. In terms of the effect of sanctions, it might be making people's conditions worse and pushing them further from the job market. What we also looked at was whether DWP had been compliant with its equality duty and it appeared that it had not been doing equality impact assessments on all of its policies and proposals relating to welfare. What we are thinking is whereas under the DDA at the moment, apart from educational organisations, everybody has pretty much got the same specific duty and we are saying the specific duty on DWP should take account of their particular circumstances. When we looked at the possible discrimination the biggest problem appeared to be the failure to make reasonable adjustments for claimants. For example, somebody might be unable to fulfil something in their Jobseeker's agreement, and they might be unable to do that because of a disability, but despite that there was no reasonable adjustment in the cases we looked at and the person still had a sanction imposed. We would like to see DWP do an assessment of each claimant to see what reasonable adjustments they need in terms of how DWP and its contractors carry out their functions.

  Q99  John Howell: If you are asking for a specific equality duty on DWP, why are you not asking for a specific equality duty on other organisations? I suppose the question that follows on from that to all of you is if you go down that route are you not totally undermining the whole idea of a single public sector duty?

  Mr Harwood: No, not at all. There will be a single duty on everybody in the Equality Act but under the DDA at the moment, for example, there is a power to have different specific duties on different organisations and that does seem to make a lot of sense. In our submission, we pointed out that on the Sir John Soane's Museum there is the same duty as there is on the DWP with an impact on several million claimants. It does make a lot of sense. They would still be under the same duty, but the thing about the specific duty is it is there to help them achieve the general duty, and what needs to be done in different cases will vary. DWP needs to do different things from other bodies and that is why we think they need a different specific duty.[3]

  Mr Purton: On this one, the TUC does not agree with your submission. It is our view that the equality duty, properly applied to the DWP, will have exactly the consequences of putting it right if there is a problem.

  Mr Sandbach: I think the debate between the general and single duties can be a bit misleading and it is all part of the single duty. It becomes a bit of a lawyer's argument about the way legislation is constructed. Going back to the original question, you asked about enforcement and how enforcement can be improved. One of the things we have argued for very strongly is this is not something that the Equality Commission can do alone because it does not have the resources and, therefore, within the Equality Bill there does need to be what we would call a regulation clause. The Equality and Human Rights Commission is very interested in being able to work with inspectorates, regulators and other public bodies that interface in regulating employment. The Equality and Human Rights Commission should be empowered in a very constructive way, in fact obliged, to work with those regulators so that they can do inquiries and enforcement actions jointly, because if there is any of that greater reach across the public sector that is going to be an effective joined-up regulatory enforcement system.



2   See Ev 224 Back

3   See Ev 226 Back


 
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