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


Examination of Witnesses (Questions 100-119)

MR RUPERT HARWOOD, MR PETER PURTON AND MR JAMES SANDBACH

2 FEBRUARY 2009

  Q100  John Howell: I have got a hundred more questions on that area but let me move you on to my last group of questions which is about procurement as a lever for securing equality outcomes. Is it realistic to see that as a lever for doing that or is it always going to be a tick box exercise that favours big organisations?

  Mr Purton: Our view is it has not even been a tick box exercise over the last few years. The guidance that has been issued is extremely conservative in its interpretation of the law and seems to have been designed in the past to deter public sector organisations from procuring their supplies and services from organisations employing disabled people. I am very, very pleased to say that seems to be changing. I downloaded a Welsh Assembly announcement of 14 January by the Minister for Finance and Public Service Delivery, which is a new procurement scheme directed at supporting employment in Wales which looks to be exactly the right approach that should be followed. I had a chance to see the new Office of Government Commerce (OGC) guidelines this month on procurement for supported factories which is a radical change from the approach that was adopted before and opens up possibilities quite considerably. There are plenty of good examples, the GLA is one of them, where procurement is being used in the right spirit and with the right approach and in that situation it can do a great deal to encourage employment for disabled people.

  Q101  John Howell: Do you have a different view from that, or would you largely endorse that?

  Mr Sandbach: I would largely endorse that. Procurement is a tool, but it is not the only tool and we need to remember that. We need to be a bit clearer about where in the procurement process these duties are going to kick in. One of the things that there should be greater clarity on is if, for example, a public sector purchaser is doing a bidding exercise and there are two companies or providers that are putting in to run a particular service, should it just be value for money criteria they are choosing on or should there be some criteria about which of these providers will perform better on equality.

  Mr Harwood: In the research we did before, which seems to be relevant to procurement, we got the impression that DWP was not taking adequate measures to ensure that its contractors complied with the Equality Duty. Of more relevance to what we are talking about at this moment, we looked at the 11 prime contractors for ESA and found that with the exception of Remploy none of them had conducted any equality impact assessments and none of them, apart from Remploy again, understood themselves to be subject to the Disability Equality General Duty despite the fact that DWP clearly regards them as subject to it. Our big concern is that unless the definition of functions of a public nature is made clear in the Equality Act, there is a danger that as more and more public functions are contracted out the equality duties will become of ever diminishing practical significance. That is very relevant to procurement and that is why we think there needs to be a definition in the Act, such as along the lines of the Joint Committee on Human Rights' definition in their inquiry into the meaning of public authority, to make clear to people such as the contractors that they are subject to that duty.

  Q102  John Penrose: I just wanted to take all three of you back to one of your earliest answers to the Chairman's question about setting the scene about where inequality is strongest. I think you gave examples of particular groups of people who have problems getting access to employment because of particular issues they are facing. The question I had coming out of that was what would good look like? If we got all these problems sorted out presumably still at the end of this there would be some groups of people, even if you sorted out all the discrimination with some waving of a magic wand, who would be under-represented in the workforce because of disadvantage and others still for whom any adjustments that could be made would be unreasonable and, therefore, you would not expect them necessarily to be able to get access to the workplace in such numbers either. How far can we get by sorting out discrimination before we run into those other two barriers?

  Mr Purton: It is a bit difficult to answer that briefly, but I will try.

  Q103  John Penrose: If there are figures that would help.

  Mr Purton: I have not got any figures. If we can get anywhere near equalising employment rates for disabled people by the target date of 2025, which I think will be pretty much of a miracle, and as an atheist I do not believe in miracles, then that would give us a judging point, if you like, for where we would be able to take into account some groups of people for whom perhaps standard mainstream employment was not ever going to be an option. In those circumstances I would hope that by removing the barriers that still continue to exist everywhere many more disabled people, who cannot be written off as unemployable, will find fulfilment and reward in access to some form or other of suitable employment.

  Q104  John Howell: Just to be clear, you said "equalising", equalising employment rates for disabled people with who?

  Mr Purton: With non-disabled people.

  Q105  John Howell: So you are assuming there that—

  Mr Purton: 80%.

  Q106  John Howell: You are assuming if you got rid of discrimination they would have the same employment rates as non-disabled people regardless of the fact that some adjustments might be unreasonable and there might also be some degree of disadvantage which they would still be facing.

  Mr Purton: There are always going to be people who for a lot of different reasons, not all of them associated with disability, are not going to be able to participate in the employment market, which is why a target of equalising at around 80%, give or take a few, is not an unreasonable thing in my view. If the approach is one of removing the barriers then a lot of the disadvantage that you are talking about in the question is removed.

  Q107  John Penrose: Would James or Rupert either agree with that or disagree, and in which case how?

  Mr Sandbach: You are getting into a discussion about the relationship between discrimination and social exclusion and how exactly you define or model that relationship.

  Q108  John Penrose: I am just trying to work out where we stop when we think the job is done. I appreciate that is a wonderful position to get to, but I want to know what good would look like because at the moment we are all assuming it is terrible but there must be some point at which we say, "We have achieved something". I do not know what point that would be.

  Mr Sandbach: It is about the perception of a fair workplace and a fair marketplace in which people have a decent chance in which the odds are not so stacked against people so they cannot participate at all. That is what we are talking about when we talk about systemic discrimination. It is overcoming that kind of systemic discrimination which is what success would look like.

  Q109  John Penrose: I was hoping for a quantification rather than a qualification. Do you have any numbers that we should be aiming for?

  Mr Harwood: That is a very good question and it is a question which should be addressed in the equality duty to some extent. One of the things it talks about is promoting equality of opportunity but it is not clear what that means. In particular, does it mean addressing historic disadvantage? Does it allow more favourable treatment? The danger is that the courts could decide to interpret that quite narrowly and they might make something of Parliament's intent in using the term "equality of opportunity" and not "equality". That is something which needs to be made clearer because that is the important question and it may need to be addressed. It is very difficult to come up with numbers, but it is something that needs to be addressed in the Bill.

  Q110  John Penrose: Can I move you on to some specific questions about equality in goods, facilities and services. This question may be applying the Disability Act more broadly, but do you believe that there should be differential standards for what is required to achieve equality in goods, facilities and services from large organisations as opposed to small organisations? Should we hold them to different higher standards in some cases than others?

  Mr Harwood: This is an area which as an organisation we have not looked at too much. I do think there is a strong argument for a private sector equality duty in relation to employment and goods and services. In relation to what you have just said, the point about that equality duty is that you would only need to do what is proportionate, you would only need to have due regard, so that would mean a smaller organisation would not have to do as much as a bigger organisation. I noticed that when they debated the Disability Equality Duty, one of the things the Government Minister said was, "We want the duty that will have the biggest impact on disabled people, so we will apply it to those organisations which have the biggest impact on disabled people". That could clearly be organisations like Tesco, for example.

  Q111  John Penrose: You used the example earlier on of the difference between the Sir John Soane's Museum and the DWP.

  Mr Harwood: Yes.

  Q112  John Penrose: I suppose the problem from the employers' point of view, be they public or private sector, is that if they are a middle-sized company or public organisation they do not know precisely what level of standard they are supposed to hit because they are somewhere in the middle, and might find out they have been aiming too high or too low when it is too late and they are receiving a rather large damages claim.

  Mr Harwood: Absolutely. That is the problem with due regard, that nobody is quite clear what it means. People like the EHRC should be able to give guidance on that and I guess test cases should be able to make that clear or at least clearer over time.

  Q113  John Penrose: Yes, but does that not still leave you with an inherently very complicated system where it will be extremely hard for any employer, public or private, to work out where they sit in the hierarchy and therefore gauge what standard they are supposed to be achieving?

  Mr Harwood: I think that is true. Also because at the moment—and we think it should do—it does not require subsequent action, it just requires assessment, and that does not necessarily mean that much. In the case of a small or medium sized company, the EHRC could quite easily produce a tool which allows that organisation to quickly assess its policies, tells them what they need to look out for and what they should add and, with relatively little effort, they should end up with a better set of policies and procedures for meeting the needs of their customers. It does not have to be onerous and it can be made clear, I would think.

  Q114  John Penrose: Would either James or Peter want to comment on that?

  Mr Sandbach: We have not supported the clarion call for the duty to be applied and banked away across the private sector, we do not think it is realistic to expect every corner shop to be up to the same standard as the larger corporate employers. But I think there are other policy tools which it can look at which are not being examined, for example, tax credits as incentives and other tools like that for reaching particular equality standards which would be more targeted at smaller employers.

  Mr Purton: I think there is a distinction. We did actually continue to support the extension of the duty to the private sector, by the way, to go on the record to say that again. There clearly is an issue because small and medium sized employers have those equality duties and obligations under the DDA to all the people they employ anyway, and the duty to make reasonable adjustment for them anyway. We do support the extension in the law of equal provision to goods and services in equal provision of adjustment duty. The TUC is chiefly concerned with employment issues obviously rather than goods and services issues so I would not want to go much beyond that. But I would support what my colleagues have said, it does not have to be particularly complicated. We have the word "reasonable" in there permanently, and we have already had ten years of people trying to work out what is reasonable or not, and by using the same tools you have to apply that in the same way. If you can make a business case, which people have been making for many years, for why smaller organisations actually profit from making adjustments for potential disabled customers and service users, then that is a reinforcement to the mechanism of doing it. If you can make support available to small and medium organisations for them to make the adjustments they need to make, that would be another inducement for people to go down the right road.

  Q115  John Penrose: When you say you would be interested in extending it from the public sector to the private sector, would you also include the third sector or not?

  Mr Purton: Yes; everybody.

  Q116  John Penrose: So not-for-profits, clubs, societies, everybody would be subject to this?

  Mr Purton: That is what we would like to see, yes, but it would take a different and more proportionate form to the one which applies to public bodies.

  Q117  John Penrose: Rupert or James?

  Mr Sandbach: As before, we do not quite share the same view as the TUC.

  Q118  John Penrose: Rupert, would you extend it to not just businesses and private businesses but to the third sector as well?

  Mr Harwood: Definitely, yes. The idea was to have the greatest possible impact in terms of reducing inequality and discrimination so you have to apply it to relevant organisations. Just as there is more and more contracting out to the private sector, there is also more and more contracting out to the voluntary sector, so absolutely they would need to be included.

  Q119  John Penrose: A final question from me is about enforcement. A number of people and a number of submissions we have seen have raised the idea of having a dedicated set of tribunals or ear-marked judges in the court system which would specialise in this kind of work to make sure there was an even and rather more predictable and simpler way of accessing enforcement in this area. Do you have strong views about how that should work? Peter, your organisation is one of the ones which does not think this is sensible, so can I start with you?

  Mr Purton: After long consultation with our member unions, we have come to the view we would not support in effect what would be an extension of the employment tribunal system becoming a much broader forum for people to take complaints on goods and services and so on because of the specific employment expertise those tribunals are meant to have and the service which is meant to work. We are afraid of losing that. As you know, we have a trade union side on those employment tribunals which is relevant to the employment field and clearly would not be extendable to the broader tribunals that people have been lobbying for. So we think the answer instead—and I am not a lawyer or a legal expert—is that clearly measures can be taken to make access to the existing judicial system easier and cheaper, more advice available about how to go about pressing a claim, but crucially I think as well, as we say in our submission, more effective training in equality legislation for judges. This applies to employment tribunals as well but at the moment there does seem to be a gap there in terms of the expertise, there is a very limited number of expert judges. We do not think having a few expert judges is the answer because that would narrow the access to the system even more; let's have broad training for people.



 
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