100. However, Mr Harwood of the Public Research Interest
Unit (PIRU) described the DDA as "a qualified failure"
and said that "It enabled several thousand employees to get
some financial redress at employment tribunals and also made an
important difference to employment practice, but it failed to
adequately tackle and reduce discrimination and disadvantage."
This apparent paradox is echoed by the Employers' Forum on Disability
which states that "Employment rates of disabled people have
not increased significantly since the introduction of the Disability
Discrimination Act (DDA) in 1995. Nevertheless, the Employers'
Forum on Disability believes that the DDA has contributed to increased
equality for disabled people in the workplace. It has raised employer
awareness and helped build disability competence into the normal
way in which people do business."
101. Mr Crowther of the Equality and Human Rights
Commission (EHRC) suggested that the type of disability matters
in terms of progress in equality for disabled people in employment:
"Ten years ago many people would have been thinking about
wheelchair users or people with visual impairment. Now what dominates
the debate around employment is mental health. [ ] People
may require adjustments that are less tangible and more difficult
to understand. I think we have a job of work to do to refresh
our approach and make sure it reflects that added complexity about
who it is that we are now actually dealing with, in addition to
Mr Sandbach agreed: "There is a hierarchy of disability and
what I mean by that is there are certain identifiable physical
impairments the employer thinks they can manage work around, but
when it comes to degenerative conditions or unpredictable conditions
or mental health problems it is a different story altogether."
102. This view is reflected in the employment rate
of certain groups of disabled people. The table below shows that
between 2005 and 2008, the employment rates for most of the impairment
types have seen significant improvements. However, the employment
rates for people with mental illness, phobias or panic has remained
substantially lower (at just over 10%) than the employment rate
for most other types of impairment.
Table 1 Source Office for Disability Data Source:
Labour Force Survey, Q2
103. Mencap even state that the number of people
with a learning disability in employment has not increased at
all since the Government came to power in 1997.
However, the table above shows some improvement in the employment
rate of people with learning difficulties, although it remains
very low. Mr Congdon of the Disability Charities Consortium argued
that "One of the reasons is that in order to recruit people
with a learning disability you do need to make reasonable adjustments.
In fact you need to use the concept [ ] of favourable treatment.
One of the things very clearly in that is about giving people
the opportunity to have what is called a work trial with the expectation
that if they do well in that they will get a job. One of the realities
is that with a learning disability if people go for the standard
interview of answering questions, if they have communications
difficulties et cetera they are liable to fail at that
104. The Royal National Institute for Deaf People
(RNID) also reports that the employment rate for deaf people has
not changed significantly since the introduction of the DDA despite
a strong desire to find work.
Research from a recent study of people living with HIV in London
found that only 47% of people living with HIV were in employment.
The DWP Minister, Kitty Ussher, acknowledged
"Any gap (employment gap between disabled people
and overall population) is obviously unacceptable and we must
continue to narrow it further. Also, within that there is [ ]
a wide variation in employment rates for different impairment
types. [ ] I know that the employment rate of people with
learning difficulties is particularly low and for those with mental
health problems. [ ] As a whole, I think our analysis would
be much done; much more to do."
105. We asked our witnesses what employment levels
for disabled people the Government should be aiming for and Mr
Azad of the National AIDS Trust argued that: "our aspiration
is that people living with HIV will enjoy national average employment
rates. We see no reason why not."
Mr Purton of the TUC agreed that "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."
106. The DWP's Public Service Agreements (PSA) 8b
and c require it to: "taking account of the economic cycle,
increase the employment rate of disabled people and significantly
reduce the difference between their employment rate and the overall
DWP Departmental Report 2008 states that the definition of a disability,
for the purpose of this target, is people with a current disability
consistent with the DDA 1995. This target is monitored quarterly
using data from the Labour Force Survey.
107. The report also states that the Department is
on course to meet this PSA target. The baseline is Quarter 2 2005
when the employment rate for disabled people was 47%, and the
gap between the rate for this group and the overall rate was 27.7%.
The latest outturn data for Quarter 4 2007 show that the employment
rate for disabled people had increased by 1.4% points to 48.4%
and the gap between the overall employment rate had decreased
by 1.1% points to 26.6%.
108. We are not convinced that the Department is
on course to meet its target with a decrease of the employment
gap between disabled people and the overall population of just
1.1% in two years. We asked the Minister to clarify how the Department
defines 'reduce significantly' in its target and over what period
of time. The Department clarified that "the policy is judged
successful if there is 'upward movement on the indicator in excess
of sampling variability'. For disabled people this requires an
upward movement in the employment rate of at least 1.41%."
However, the Department did not answer the important question,
statistical error aside, of what sort of increase it would regard
as a success.
109. We note
the Government's long-term ambition for the overall employment
rate of disabled people to match the employment rate of the general
working age population. We believe this ambition is laudable but
impractical. However, we are disappointed that the Government
can claim to be on course with an upward movement in the employment
rate of just 1.41%.
110. We recommend
a more realistic long-term target accompanied by interim targets
with a timetable for measuring progress. We recommend the Government
sets an interim target over 5 years. By then we would expect the
gap to have declined significantly. We also recommend that the
Government monitors progress by physical impairment, mental illness
and learning disability, as set out in the Labour Force Survey
data, to ascertain whether more progress is being made in some
groups of disabled people than in others.
112. Mr Harrop of Age Concern and Help the Aged stressed
that "There is plenty more room to increase employment between
the ages of 50 and 69 which is the current age range that DWP
uses. There is no reason to think that it could not get significantly
closer to the main employment rate."
In the UK in 2007, full-time workers aged 50-59 also earned on
average (median) 6.5% less per hour than full-time workers aged
40-49, while those aged 60-plus earned an average of 20.1% less.
113. A number of submissions have argued that one
of the greatest obstacles to improving employment opportunities
for older people is the continued existence of the statutory default
retirement age in the Employment Equality (Age) Regulations 2006.
The regulations were introduced to transpose the EU Directive
2000/78/EC into domestic legislation. They stipulate that a British
employer can dismiss a member of staff without redundancy payments
on that person's 65th birthday. They also give employees the right
to request working beyond retirement age, which employers have
a duty to consider. Help the Aged and Age Concern argue that:
"the exemption in Regulation 30 allowing enforced retirement
at the age of 65 is unjustifiable discrimination, contrary to
fundamental human rights and principles of equality."
114. According to a 2006 DWP survey conducted to
establish the effects of the forthcoming legislation, 57% of establishments
had no default retirement age but many have introduced one since
the regulations came into force.Age Concern and Help the Aged argue that a default retirement
age creates a barrier to opportunities for selection, promotion,
training and job mobility for people in their late 50s and early
60s. A study of people in their 50s and 60s who were still working
revealed that 58% wanted to carry on working after 65 and 10%
did not want to retire at all.
A survey carried out by the Age and Employment Network found that:
89% of respondents were aware that there was
legislation covering age discrimination in employment.
Only 63% claimed that they understood roughly
what the legislation said and the rights that it gave them.
Just 13% agreed that the legislation had helped
older people find work.
38% had experienced age discrimination in the
50% had experienced age discrimination in seeking
115. However, the CBI argued that the default retirement
age has allowed businesses to plan their HR functions with greater
certainty and that there is evidence that firms are also becoming
more receptive to the concept of flexible retirement. The 2008
CBI/Pertemps Employment Trends Survey shows that:
"Almost a third (31%) of employees reaching
retirement age postponed retirement in the last 12 months. More
than four fifths (81%) of requests were granted, representing
substantial increases on last year's results - 22% and 72% respectively.
"Employers of all sizes are offering extended
working: nine out of ten requests are now accepted by employers
with up to 500 employees, up from 55% in 2007. This suggests that
smaller firms - without the HR capacity of larger employers -
have adapted to the new regulations after testing the water in
the first year.
"The total percentage of employees working post-retirement
age has increased from 16% to 33%."
116. The CBI argues that these figures suggest that
firms have gained a greater understanding of how the new system
operates in practice.
Mr Harrop of Age Concern and Help the Aged said "the key
thing to watch is the average age that people leave the workforce.
It has been improving in recent years and we will have to see
what happens over the next few years. We will need to see over
the long run that average retirement ages rise in line with life
expectancy so that people spend roughly the same share of their
adulthood in work as they do today."
117. We asked the DWP Minister, Kitty Ussher, why
she is not taking the single Equality Bill as an opportunity to
review the policy and she responded: "We have made it clear
that there will be a review of the default retirement age in 2011.
There is not a consensus across the whole of society, so we are
sticking to that timetable."
118. Age Concern and Help the Aged argue that for
many older people who wish to work past 65 years, this is too
late. About 25,000
workers are estimated to face default retirement at 65 in the
UK every year, when they would be happy and able to carry on working.
Shortly before the Employment Equality (Age) Regulations 2006
took effect, Age Concern, under the banner of its offshoot Heyday,
applied to the High Court to have the regulations ruled unlawful.
The Judge referred certain questions to the European Court of
Justice (ECJ) for guidance. Age Concern challenged the regulations
on two fronts. First, they argued that regulation 30, which permits
employers to continue to compulsorily retire employees at the
age of 65, was contrary to the EC Equal Treatment Directive. Second,
they argued that the ability to 'justify' direct age discrimination
had been drafted too widely.
119. On 5 March 2009 the ECJ ruled that the UK's
compulsory retirement age of 65 will not be in breach of EU rules
on age discrimination, provided that the UK Government is able
to justify having such an exemption from age discrimination laws.
It will be for the High Court to decide this issue when the case
returns for another hearing, probably later this year. The ruling
thus does not resolve the question of whether the default retirement
age is lawful.
120. Whilst it will be for the High Court to determine
whether the compulsory retirement age is a justified exception
to the principle of non-discrimination, the ECJ spelled out that
such direct discrimination is only capable of being justified
by reference to social policy objectives, such as those related
to employment policy, the labour market or vocational training.
Significantly, the ECJ went on to note that "[by] their public
interest nature, those legitimate aims are distinguishable from
purely individual reasons particular to the employer's situation,
such as cost reduction or improving competitiveness."
The ECJ also cautioned that: "Mere generalisations concerning
the capacity of a specific measure to contribute to employment
policy, labour market or vocational training objectives are not
121. It is now for the High Court to decide how this
part of the ECJ's ruling affects the UK Age Regulations. Essentially,
the Government now has to demonstrate that giving employers the
ability to justify direct discrimination has a social policy objective
and is a proportionate means of achieving that objective. Even
if the High Court decides that the regulations can still stand,
it seems inevitable that they will be interpreted in a way that
limits the reasons employers can rely on to justify direct discrimination.
122. In light
of the judgment by the European Court of Justice, we recommend
that the Government removes regulation 30, which permits employers
to continue to compulsorily retire employees at the age of 65.
This regulation contradicts the Government's wider social policy
and labour market objectives to raise the average retirement age
and allow people to continue to work and save for their retirement.
124. On 10 June, the Government published its ten-year
vision for carers, Carers at the Heart of 21st Century Families
and Communities. This outlined a range of commitments including
improved provision of information and advice; breaks provision
for carers; improved support from the NHS; and support to help
carers combine work and care.
125. The Committee's report drew attention to the
enormous value to society of the unpaid support that carers provide
(estimated at £87billion each year). It also noted that most
informal carers are of working age, and that sustaining carers'
ability to remain in work was not only of importance to many carers
(and their employers) but was essential to the Government's aspirations
of an 80% employment rate.
126. Carers UK argue that many carers who are currently
in work are at risk of falling out of work because of a lack of
services and a lack of support at work and many carers who are
not currently in work would like to work, but are not able to
because of poor services, a lack of flexible working and the benefits
trap. Almost a quarter of carers who responded to the National
Audit Office's survey would like to do more paid work, but do
not want to lose their entitlement to Carer's Allowance. Carers
UK refer to research which shows that
only about a quarter of working carers felt they
had adequate support from formal services to enable them to combine
work and care;
over a third of working carers had considered
giving up work to care;
52% of carers working in the private sector said
their employer was carer-friendly, compared with 68% in the public
sector and 78% in the voluntary sector; and
of carers working part-time, 50% of those in
the private sector, 44% in the public sector and 54% in voluntary
sector said they only worked part-time because services were not
adequate for them to work full time.
127. Of those carers who were unemployed, or who
described themselves as looking after home and family, but said
they would like to return to work if suitable arrangements could
be made to make this possible:
more than two thirds said their caring responsibilities
had caused them to leave paid work,
more than three quarters said it was difficult
to find a job that fitted with their caring responsibilities,
more than half said they would rather be in paid
work but the services available to them did not make a job possible
128. Ms Holzhausen of Carers UK described her vision
for greater equality for carers in employment as follows: "We
would see an increase in the number of carers in employment and
we would also see a decrease in the number of carers who felt
they were forced to leave employment early."
We found in our inquiry that one in five carers gives up work
to care; this can lead to loss of income, pension and long-term
financial security. Carers have also been refused jobs on the
basis of their caring responsibilities. Carers UK reports that
"Comments which used to be asked regularly of women about
their childcare responsibilities, and suggestions that they might
not be completely committed to their work, are now targeted at
129. Some carers can and do return to work but many
are unable to do so because of a loss of skills, confidence and
networks. Carers frequently report problems in accessing training
courses provided by their employers, for example, if these are
held at weekends or during the evenings and no alternative care
is provided. Even where employers take child care requirements
into consideration they often overlook carers of adults. Carers
UK reports that "CarersLine took on a case where an employer
had paid alternative care costs to enable an employee with a child
to attend training but was not prepared to do so for an employee
caring for a disabled adult."
130. Carers face problems especially when alternative
care services are unavailable or inflexible. Many have to use
their paid annual leave to cover care needs meaning they do not
get a break themselves. Although some succeed in reducing their
hours or changing their working patterns, many feel forced to
look for a different type of work or to change their jobs. Carers
UK suggests that at work some have also met with ignorance, disrespect
or hostility because of their need to work flexibly: "a day
centre in Halton was closed without properly consulting or considering
carers' views; the resulting plans forced many parents to give
up work in order to care for their adult sons and daughters because
the more 'flexible' packages of care assumed they would provide
the care in between."
131. Carers also experience harassment and hostility
at work from managers or colleagues. Comments such as the following
from a carer employed in social services are common:
"There was a time when my son was poorly and
when I came into work, the first thing they said was, 'Ooh, you've
had time off again have you? You've been on holiday again, have
you?' These sorts of things. She must have known why I was off,
that my son was really sick, poorly. Even when I told her, she
carried on with these comments and digs. Never once said, 'Oh
I'm sorry, how is he? Is he OK?' Ironic when you think they are
educational social workers supporting families where children
have special needs."
believe that the legal position of carers in employment should
be made clear to both employers and employees by extending protection
from discrimination to carers as discussed before. DWP also has
a role to play in improving its service to carers who access Jobcentre
133. We recommend
that DWP should support adults who become carers during their
working lives to combine work and care and enable those who wish
to return to paid work when caring ends or changes to do so. A
'joined up' intergovernmental approach is required to ensure that
carers are supported in the wider social care system by adequate
arrangements to inform them of their rights and entitlements and
of how to access an appropriate range of support and services.
Links must be made at a local level so that advisers are able
to help carers find social care services in the same way they
do with parents who need support to access childcare.
135. The EHRC urges the Government to prohibit discrimination
in relation to volunteering: "This is an issue which applies
equally to all strands of equality. The government should act
to protect volunteers against discrimination and harassment, not
just on the ground of disability but also on other grounds."
136. Age Concern and Help the Aged highlight the
benefits of outlawing upper and lower age limits to volunteering:
"the value of unpaid work contributed to the economy by older
volunteers (formal and informal) in 2001 was approximately £5billion
a year. Individually, older people would also greatly benefit
from the increased activity, both physically and mentally, as
well as developing their skills and actively participating in
137. We strongly
believe that discrimination legislation should apply to volunteering
as it does to other aspects of day-to-day life such as access
to goods, facilities and services, employment and education. Volunteers
currently have less legislative protection against discrimination
than someone going into a sweet shop. Better protection would
also recognise the contribution of volunteering and its importance
for disabled people as a route into employment. We recommend that
the Government clarifies the position of volunteers in terms of
protection from discrimination in the single Equality Bill.
139. Currently individuals who have been discriminated
against have to shoulder the burden of bringing a claim. The Government
is considering introducing representative actions, enabling bodies
such as trade unions or the EHRC to take cases to court on behalf
of a group of individuals.
Mr Harwood of the think tank Public Interest Research Unit said
he welcomed this move: "We would quite like
to see the EHRC do a lot more enforcement, especially in cases
which will educate employers as to what the law requires."
The Minister, Maria Eagle, confirmed that the Government is:
"looking at whether or not we can have representative
actions and we are looking at how best we might be able to achieve
that, simply because I think we do recognise that with an individual
right to claim discrimination you are putting a big emphasis on
the individual to go through the legal system. It is not an easy
thing to do. It can be extremely stressful. It can be costly and
there is no guarantee of success. It can take years."
welcome the Government's intention in the single Equality Bill
to give employment tribunals extended powers to make recommendations
that employers amend their policies or practices. We believe the
Government should monitor whether this measure encourages better
employment practices. We recommend that tribunals should also
be given binding powers to order reinstatement in discrimination
upon individuals to bring about systemic change through individual
litigation places a heavy burden upon them. It also places a heavy
burden on employers and the tribunal system itself. We recommend
that the Government introduces provisions for representative and
class actions in the single Equality Bill, enabling bodies such
as trade unions or the EHRC to take cases to court on behalf of
a group of individuals. We believe this will benefit individuals,
employers and the administration of justice.
143. In 2005, the Chartered Institute for Personnel
and Development (CIPD) found that 33.1% of CIPD members excluded
people with a history of long-term sickness or incapacity, even
though such policies would clearly be open to challenge under
The TUC refers to CIPD evidence that shows
that a third of employers admitted that they discriminated unlawfully
against disabled people and the National AIDS Trust quotes CIPD
findings that discovered that more than 60% of employers said
they disregarded applications from people with drug or alcohol
problems, a criminal record, a history of mental health problems
or incapacity. More than half of respondents said nothing would
persuade them to recruit from these 'core jobless' groups.
144. The EHRC says: "although it is open to
disabled people to challenge recruitment discrimination through
the DDA, this is a very poor second best to reducing the actual
incidence of discrimination in recruitment."
146. The Disability Rights Taskforce recommended
in 1999 that disability related enquiries before a job offer should
be permitted only in very limited circumstances.
This recommendation was also made by the Disability Rights Commission
in 2003. The Government rejected this proposal, but most submissions
consider there is still a clear and pressing need that such questions
prior to job selection should be prohibited.
Ms Scott-Parker of the Employers' Forum on Disability said:
"We have advised our members that it is a waste
of time and effort and money to ask questions about what is wrong
with you at the pre-recruitment stage in terms of medical questionnaires
for a long time. One of our member banks did some research and
found they were spending all this money asking doctors if the
guy was okay, and it did not predict anything. They could not
predict absenteeism in the future or anything, so they just stopped."
147. Many employers still ask medical questions about
applicants' disabilities prior to job interview and selection.
This enables employers who wish to discriminate to simply reject
disabled applicants at an early stage. The Minister, Maria Eagle,
acknowledged that: "If you have an employer who is thinking
of discriminating anyway, a pre-employment questionnaire can be
added that "It would be illegal to use such questionnaires
to discriminate. That is quite clear."
However, Mr Azad of the National AIDS Trust stressed that: "when
it comes to recruitment it is often very difficult to demonstrate
that discrimination has actually taken place."
148. Mr Willman of the Federation of Small Businesses
(FSB) reported that his clients experience discrimination in recruitment:
"My day job is helping disabled people get back to work,
and we have put in applications from the same person with a tick
saying they have not got a disability and they have got the interview,
and then the same person has ticked it and they have not."
The Minister, Maria Eagle, suggested that: "It is certainly
not compulsory to reveal that you are a disabled person."
Ms Scott-Parker argued that people may have good reason why they
would not want to reveal their disability:"I
am particularly struck by this case in the press at the moment
where a woman who did not declare that she had a mental health
history has been told that, had she declared it, they would never
have hired her, which is as good a reason for not declaring as
I can think of."
149. However, if someone lies in a job application
in relation to their health status and this is later discovered,
they could lose the job. Research reveals that one in ten employers
has withdrawn a job offer because the applicant had lied or misrepresented
their health situation on the health-screening questionnaire.
7% of employers have dismissed an employee while in employment
for the same reason. Withdrawn job offers or dismissal on these
grounds is twice as common in large organisations.
150. An individual's health and disability may well
be relevant to his or her suitability for a particular job. Even
where an employer is willing to provide reasonable adjustments
it may not be possible for someone to fulfil a particular role.
There is therefore a place for appropriate and relevant health-related
questions (and medical examinations) as part of some recruitment
processes. Ms Williams of the CBI stressed that:"from
an employer's perspective, there does come a point, [ ] the
duty of care that an employer owes, to be satisfied that this
candidate is suitable for the job. Obviously the questionnaire
needs to be tailored for the role and the responsibility and the
duties, but to ban them outright creates a potential difficulty
for organisations because there will come a point where that assessment
needs to be made."
151. There could then be cases where a job offer
is withdrawn because of health-related concerns or because reasonable
adjustment for a disability is not possible. Mr Azad of the National
AIDS Trust agreed: "Should it become apparent that there
is either a disability for which no reasonable adjustment is possible
or some health issue which cannot possibly be addressed, then
it is possible to withdraw the job offer but the process is transparent
and someone can, if they really feel it is necessary, make a complaint
and we would all understand what the issue is."
152. In limited circumstances, to be clearly defined,
it could be appropriate to ask health-related questions in advance
of a job offer, where a particular state of health is absolutely
necessary for the specific role: where, for example, there is
an absolute prohibition on persons with certain health conditions
taking on particular healthcare roles.
153. Prohibition of pre-employment health-related
questions is found in several European countries: Spain, France,
Italy, Belgium, Portugal and the Netherlands. In the United States
employers cannot ask people if they have a disability until after
a job offer has been made. The Americans with Disabilities Act
1990 states that employers: "shall not conduct a medical
examination or make inquiries of a job applicant as to whether
such applicant is an individual with a disability or as to the
nature or severity of such disability."
154. Pre-employment questionnaires are only allowed
if they relate to "the ability of an applicant to perform
job-related functions." This ensures that it is easier to
recognise cases where employers have discriminated against potential
applicants. 16,000 charges are filed under the Americans with
Disabilities Act every year.
155. We asked the Minister, Kitty Ussher, if the
Government would consider banning pre-employment questionnaires
in the single Equality Act and she said: "we keep every policy
under review and we obviously have the evidence internationally.
We think they serve a useful purpose and, as we have both said,
it is illegal to discriminate on the basis of disability. Those
cases should be taken through the legal system if there is evidence."
156. We endorse
the Disability Rights Taskforce's recommendation that disability
related enquiries before a job offer should be permitted only
in very limited circumstances. As a general rule such questions
should only be permitted after a conditional/provisional job offer
has been made. There will be cases where a job offer is withdrawn
because of health-related concerns or because reasonable adjustment
for a disability is not possible. However, the process would then
be transparent, and where there is disagreement as to the decision,
further consideration or mediation are possible.
"Fewer than one in ten cases are recruitment
cases (dismissal cases being the most common). Recruitment cases
are less likely than cases under other subjurisdictions to succeed
at tribunal. The previous research tentatively suggested a number
of possible reasons for this pattern, including:
the (actual or perceived) greater difficulty
in meeting the burden of proof in recruitment cases, compared
with those under other sub-jurisdictions;
the relative lack of availability of support
and advice to potential applicants in recruitment cases (compared,
for example, with those in dismissal or reasonable adjustment
cases, for whom Trade Union or other support may be more easily
a lower willingness of legal advisers and others
to take recruitment cases, compared with cases under other subjurisdictions."
158. Mr Sandbach of Citizens Advice said: "The
problem with where the DDA applies to recruitment is there is
an assumption at the front end of the recruitment process that
the DDA does not really apply, [ ] even though clearly within
legislation it does, and it is harder to establish."
Mr Harwood of the Public Interest Research Unit added: "The
research I have seen does seem to suggest there is a lot of discrimination
right across the recruitment process and in putting out adverts
to make the final selection. I also get the impression it is very
hard to take a case to a tribunal. For most applicants it will
not be worth a candle."
159. Ms Williams of the CBI acknowledged that: "it
is much more difficult across any of the strands of discrimination
to establish discrimination at the recruitment stage compared
to the employment stage."
Ms Casserley of the Discrimination Law Association argued that:
"Discrimination cases generally are very hard to win because
it is very rare that someone will overtly discriminate. [ ]
People can use what is called a questionnaire procedure to get
information about why they were treated in the way they were treated.
Those sorts of questionnaires are very underused and they are
a very useful tool for people. I think one of the other issues
as well is that when someone brings a claim it is often quite
a difficult process and there is often not the support or the
advice there; there is no legal aid available for employment tribunals."
160. We have heard that the Employment Tribunal cannot
make any recommendations about what the employers should do because
they are only allowed to make recommendations that will affect
the individual person. Ms Casserley argued that this is a real
disincentive for people to take cases: "it is quite difficult
for individuals to look at that process and think that that is
something they should go through because something good will come
out at the end of it; that is not always the case."
She added that: "Certainly representative actions would be
a very useful tool and the ability to make recommendations beyond
the individual situation so that if an individual brings a claim
about recruitment the employer has to do something to address
that situation and to address the future for other people."
161. We asked the Minister, Maria Eagle, whether
the Government is considering giving tribunals this wider power
to make recommendations in relation to employers' recruitment
processes. She confirmed: "it is something we are looking
at whether we can do in the legislation. There are clearly circumstances
where it might prove very useful. There are other circumstances
where it may not make much difference but it is something we are
looking to see whether or not we can achieve in the Bill."
162. There is
a sharp discrepancy between disabled peoples' perception that
discrimination in recruitment is a major problem and the number
of cases taken to employment tribunals. Our recommendations for
representative and class actions and wider powers for tribunals
to make recommendations on employers' policies and practices,
including recruitment processes, are particularly relevant in
improving compliance and enforcement of equality in recruitment.
163. We also
recommend that the Equality and Human Rights Commission takes
a strategic approach to improving enforcement by taking on cases
in recruitment to improve compliance with the law. It should conduct
more strategic research in this area and launch investigations
into discrimination in recruitment, where appropriate.
164. We agree
with the Equality and Human Rights Commission that legal challenges
to discrimination are a very poor second best to reducing the
actual incidence of discrimination in recruitment. We recommend
that the Government launches an information campaign for employers
and employees to promote the case for employing disabled people
and tackle the false perception that they would be a burden to
166. However, the Minister, Maria Eagle, did not
see any need for this to be addressed in the new Bill: "This
is a big awareness and culture issue, as much as us having to
change the law. I think the law is already in the right place."
She added that "There is a role here for the Equality and
Human Rights Commission [ ]. That is something which I expect
it would take an interest in and perhaps think about using some
of its enforcement powers to look at more closely. I think that
is an appropriate way."
167. We are
extremely concerned by the evidence from the Employers' Forum
on Disability that 85% of online recruitment sites were inaccessible
and that 1.3 million people were being prevented from applying
for jobs. If the employment rate for disabled people is to be
improved, this should be a priority for the Government and the
Equality and Human Rights Commission to address.
168. We recommend
that the Equality and Human Rights Commission conduct more research
into the extent of the use of inaccessible technology in the recruitment
process, with a view to taking further action in raising awareness
of the problem amongst employers and launching its own investigations.