Examination of Witnesses (Questions 80-99)|
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 sayit 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 understoodcertainly
as we read the material out at the timeas 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
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
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
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.
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
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
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.
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
2 See Ev 224 Back
See Ev 226 Back