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


6.  Memorandum submitted by Public and Commercial Services Union

INTRODUCTION AND CONTEXT

  1.  The Public and Commercial Services Union (PCS) is the largest trade union in the Civil Service. We represent over 300,000 civil and public servants employed across the Civil Service and related areas, including over 80,000 members working in the Department for Work and Pensions (DWP). We also represent members who continue to carry out public service functions now situated in the private sector.

  2.  PCS has worked with the government for many years in pursuance of equality and has supported the development of equality and diversity policies.

  3.  We welcome the opportunity to submit evidence to the Committee's inquiry. This submission has been drafted in consultation with PCS members working in the DWP, the PCS Equality unit, and PCS members in the Equality and Human Rights Commission (EHRC) disabled staff group.

EQUALITY IN EMPLOYMENT

How effective has DWP been in achieving equality in employment, how would it have to change to achieve greater equality in employment?

  4.  As Lord Rix and Lord McKenzie of Luton point out in their contributions to the Lords debate on unemployment of Wednesday 12 November 2008[86], 11 years after the current government came to power there is still a marked difference in the numbers of disabled people, lone parents and ethnic minorities in paid employment compared with the rest of society:

    Lord Rix: My Lords, is the Minister aware that, when this Government came into office in 1997, only one adult in 10 with a learning disability was in paid employment? Unhappily, 11 years later, that figure still applies in spite of all the disability legislation that has gone through this House and the other place. Despite the looming recession, what can the Government do to encourage employers to improve on that figure, bearing in mind that there is much specialist support available to make this possible?

    Lord McKenzie of Luton: My Lords, the noble Lord raises an important point. If one looks at the overall employment rate and its composition, one sees that disabled people, lone parents and ethnic minorities do not reach the average rate that applies for the rest of the economy. It is certainly right to say that people with learning disabilities have not made the progress that we would wish. That emphasises to me the need to continue to reinforce and entrench those active labour market policies to make sure that we engage with employers through local employment partnerships and city strategies and encourage them to take advantage of the funding streams that are available. In these challenging times, we should not take our foot off the pedal of those important and progressive reforms.

  5.  The quote above suggests that more can be done to tackle the structural inequalities in the labour market which affects disabled people, lone parents and ethnic minorities. The DWP needs to set out a programme of work to challenge employer discrimination against these vulnerable and marginalised groups. This should include action to challenge stereotypes and discriminatory attitudes held by employers as well as supporting flexible working practices and the provision of childcare.

  6.  Those most likely to be discriminated against tend to be the first to leave the labour market and the last to return. This may serve to entrench and expand inequality in the current economic climate.

  7.  In a recent survey by the National Employment Panel, 83% of employers said that they believed they could violate equality legislation with impunity. The DWP could do much more to promote awareness and understanding of equality issues amongst employers and the general public. Employers need support to understand their responsibilities towards their employees and potential future employees.

  8.  PCS welcomes the disability legislation and specialist support that has been made available to disabled people and other minority groups, however there remains a need for improved support.

How can the Equality Bill open up opportunities in employment, particularly for disabled people, carers and pensioners?

  9.  Established case law on the application of the Disability Discrimination Act (DDA) was overturned by the House of Lords in June 2008 and needs to be rectified in the Equality Bill.

  10.  DWP needs to have the statutory support of the original intent of the DDA to help deliver the government's objective of supporting employment so that people can move from benefits to work. DWP employees with a disability will also inevitably find it more difficult to be protected against less favourable treatment and the government may increasingly see its own employees moving from work to benefits.

  11.  The unemployment and underemployment of disabled people will continue to exist unless the DWP takes the lead in initiating more supply side rather than demand side policies. For example, all too often the focus is on the impairment of the disabled person and responsibility they need to take to redress difficulties experienced rather than how an employer can make their environment fully accessible physically, sensory and attitudinally.

  12.  Greater sanctions should be applied to employers for poor practice. Whilst the EHRC has a duty for listed organisations to eliminate institutional discrimination, enforcement of this duty is less straightforward eg it still relies on a process for challenging instances of discrimination using a toolkit process prior to selective support from the Commission about which cases to support. It has proved difficult to sanction every known employer for failing to proactively remove possible instances of discrimination occurring despite the welcome shift of focus of the duty compared with the DDA reasonable adjustment provision. The employment provisions in the 1995 Disability Discrimination Act rely on an individual disabled person to challenge an instance of discrimination which is expensive and stressful.

  13.  The role of culture is of paramount importance and the DWP should utilise the Bill's opportunities to place a greater emphasis on how employers should provide enabling rather than disabling environments, recognising the impact of obligatory expectations rather than relying on spontaneous goodwill.

How should the Equality Bill respond to the decision in the Malcolm case in respect of disability rights in employment?

  14.  The Malcolm case has had a substantial and detrimental effect on the ability of disabled employees to take action against employers for discrimination relating to their impairment/disability. A significant part of the reason for this is that the DDA sits uncomfortably between traditional discrimination issues (as understood in reference to sex, race etc) and the "social engineering" aspects of disability discrimination. There is a lack of consensus as to whether the scope of the DDA should be wide enough to encompass these "social" issues or whether they should be dealt with elsewhere. To put this into "traditional" discrimination terms, where a policy has an indirect adverse impact on disabled people currently, which might move it into the territory of indirect discrimination under any other strand of equality law, it is unclear how the issue of the "proportionate pursuit of a legitimate aim" is to be judged. Several examples are readily available:

  15.   Sick pay: where an employee has to have a substantial time off from work for reasons related to their disability, is it "fair" that they have the same rules for sick pay limits applied to them, even though this means that they are more likely than their non-disabled colleagues to therefore exhaust that entitlement to full-paid sick leave and end up with reduced income and poverty issues as a result?

  16.   Return to work on reduced hours: it is clear that a "phased return" to work is often beneficial in sustaining that return to work over a longer period of time—however, linked to the point above on sick pay, is it right that, where entitlements to sick pay have been exhausted, those undertaking such a "phased return" are classed as "sick" during hours that they are not working and therefore not paid for those hours—meaning that such phased returns are either rejected, for financial reasons rather than good health management, or curtailed for the same financial reasons?

  17.   Sickness absence: certain individuals experience periods where their impairment, or issues to do with the management of it (such as a change of drugs for someone with epilepsy), result in long or regular short periods of absence. This can particularly be an issue with the onset of impairment. Is it correct that employers have no need to take into account the disability-related aspects of this absence and can dismiss such employees under standard "capability" or "poor attendance" processes? How does such an approach assist towards the greater employment and retention of disabled workers? In relation to its own employees DWP has a very narrow definition of disability leave which we believe has resulted in less support and more dismissals than in other government departments with a broader definition.

  18.  The Malcolm case is a clear example—where someone who had sub-let their flat, ostensibly for disability related reasons, falls between the two aspects of the DDA: on the one hand, as for anyone who has breached their tenancy on sub-letting, it was clear that Mr Malcolm should have to vacate the premises in favour of Lewisham council. However, because he had undertaken the sub-letting at a time when his impairment may have influenced his abilities to reason cogently, there was an argument that it would be socially unacceptable to force him out. So the real question that needed to be asked in the Malcolm case was "Is the eviction of all those who sub-let contrary to their tenancy agreements a legitimate aim? And, if it is, is the eviction of Mr Malcolm a proportionate step in the pursuit of that aim?"

  19.  Equality in employment needs to be better secured by establishing that the appropriate comparator test under the DDA is as stated by Baroness Hale of Richmond in the House of Lords Judgement of 25 June 2008 in London Borough of Lewisham v Malcolm, rather than the majority opinion as put by Lord Scott[87]. The Judgement overturned the established case law however Baroness Hale asserts that:

    72.  On closer examination, however, the decision in Clark v Novacold makes sense. There is also good reason to conclude that it reflects the actual intention of Parliament. The object of the earlier race and sex discrimination legislation was to secure that like cases were treated alike regardless of race or sex. The treatment given to a woman was to be compared with the treatment given to a man whose circumstances were alike in every material respect except their sex. The treatment given to a black person was to be compared with the treatment given to a white person whose circumstances were alike in every material respect except their race. The DDA undoubtedly intended that a disabled person should be treated in the same way as a non-disabled person whose circumstances were alike in every other material respect. The formulation readily covers direct discrimination of that sort. If the employer, provider or landlord refuses a job, a haircut or a flat to a disabled person who is just as capable as anyone else of doing the job, sitting in the barber's chair, or paying the rent and observing the covenants in the tenancy agreement, simply because he is disabled, then "that reason" is the disability itself and would not apply to other people.

    73.  But this might not be enough. The race and sex legislation recognise both direct discrimination of that sort, when race or sex or disability is the reason why the landlord behaves as he does, and indirect discrimination, where the landlord imposes some requirement which is ostensibly neutral but has a disproportionate effect on one sex, or one race, and which cannot be justified. The DDA undoubtedly aimed to cover this sort of discrimination too. An obvious example is a ban on dogs in restaurants, which has a disproportionate effect upon blind people who rely upon guide dogs to get about. The White Paper, Ending discrimination against disabled people, 1995, Cm 2729, which preceded the 1995 Act, made it clear in para 4.5 that the intention was to cover such cases."[88]

  20.  The example of the revised position on the disabled person with a guide dog, refused entry to a restaurant which bans dogs, as explained by Lord Scott of Foscote under Part 35 of the Judgement illustrates how bad this Judgement is:

    35.  Mummery LJ referred (p.964) to the hypothetical case of the blind man with a guide dog who wished to enter a restaurant which did not permit the entry of dogs. The blind man with his dog is refused entry. Would that refusal be unlawful discrimination for the purposes of section 20(1)(a)? The problem with most hypothetical cases is that the facts are incomplete. Would the blind man without his dog have been refused entry? Almost certainly not. The problem was the dog. The dog was the reason for the refusal of entry. That reason was causally connected to the disability, but the disability would have played no part in the mind of the restaurant manager in refusing entry to the dog. The problem, I repeat, was the dog. The restaurant manager's reason for refusing entry to the dog would not, in my opinion, have related to the blind man's disability for section 24(1)(a) purposes. If that be wrong, and the manager's reason for refusal of entry would have related for section 24(1)(a) purposes to the disability, would "others" to whom that reason would not have applied have been refused entry? The "others" would, in my opinion, have been persons, whether blind or sighted would not matter, unaccompanied by dogs. They would not have been refused entry; the blind man with his guide dog would have been treated less favourably. Discrimination would have been established. Confusion regarding the blind man and his guide dog example has, I think, crept in because of the over-concentration on the refusal to admit entry to the dog. The dog is not a potential beneficiary of the 1995 Act. It is the blind man who is. If he is refused entry it is not because he is blind but because he is accompanied by a dog and is not prepared to leave his dog outside. Anyone, whether sighted or blind, who was accompanied by a dog would have been treated in the same way. The reason for the treatment would not have related to the blindness; it would have related to the dog."[89]

  21.  Other cases similar to the Malcolm case exist, particularly in the employment field—a case which PCS supported, for example: O'Hanlon v Commissioners for Inland Revenue, which looked at the impact of sick pay rules on disabled people. The case was appealed to Court of Appeal level. This case addressed sick pay limits and the outcome seemed to suggest that there was no obligation on employers to pay more sick pay to disabled workers than to others. But this leaves an unresolved "social" issue for disabled people—they simply cannot afford the periods of sickness if their employer is not paying them. In such circumstances, many might be tempted to remain on benefits.

  22.  There is also the judgment in Royal Liverpool Childrens NHS Trust v Dunsby relating to sickness absence. If employers are entitled to take all disability related absence into account, then their Attendance Management policies are not contrary to the DDA, despite being policies which have adverse impact on disabled people, compared to those who are not disabled.

  23.  There is a need for a clear debate on what society expects to be accepted or provided for disabled workers, to enable them to obtain and retain employment and then for us to go on to determine the appropriate vehicles to achieve those aims—whether it is some amendment to the provisions of the DDA or by some other effective means. In many cases, this will be a debate about who should be responsible for providing such "social" protections for disabled workers—their employers or the government.

How should the Government improve protection of carers in equality legislation, following the decision in the Coleman case?

  24.  It is essential, following the Coleman decision, for the disability aspects of the single Equality Bill to extend to cover those who are discriminated against by association with a disabled person—on the grounds of disability, as is the wording of the Directive. In the regulations enacting that Directive for discrimination on the grounds of sexual orientation and religion and belief, the wording of the regulations are sufficiently wide as to encompass such discrimination within their terms. This is not the case with the DDA, however, because of the whole approach of that Act, which limits its coverage only to those who meet the definition of disability. As discussed elsewhere, it may be better to seek to change the basis on which those protected from such discrimination are defined, such as to bring all such legislation into a format that is equally applicable to all persons (with the possible exception of the requirements for reasonable adjustments).

  25.  PCS believes that carers currently receiving Income Support should not be moved onto Jobseekers Allowance. Forcing them to claim JSA will mean they will have to demonstrate they are actively seeking employment. We believe the changes proposed will lead to an increase in unfair suspensions of benefit.

EQUALITY IN GOODS, FACILITIES AND SERVICES

How can it be made easier for disabled people, carers and pensioners to bring and pursue cases in GFS?

  26.  The DWP business model with its focus on telephony can be a barrier for disabled people, carers and particularly pensioners. When it was established the Pension Service made a commitment to access "harder to reach customers", however it then cut Local Service staff by 25%. We believe there needs to be a mixed business model that allows pensioners to access services by telephone and face to face.

Should discrimination by association extend to GFS?

  27.  Yes, it must—it is easy to envisage circumstances where someone could face discrimination in the provision of GFS due not to their own but to a partner's or child's disability. It is essential that the law covers such eventualities.

THE PUBLIC SECTOR EQUALITY DUTY

How could a Disability Equality Duty in the public sector be built upon within a Single Equality Duty? Is a Single Duty desirable?

  28.  PCS is not entirely convinced that a Single Duty is desirable, though we would welcome the extension of equality duty principles to age, religion and belief and sexual orientation. In our experience, when principles are combined, there is a tendency for clear rules to be watered down. The present regimes have a clear division in terms of timescale for the preparation of each Equality Scheme. We believe that this properly enables public sector bodies to address each aspect of equality fully—and there is evidence that many of those who have attempted to prepare single Schemes thus far have failed in some respect to meet all of the requirements of the various legislations. If, as we expect, there is to be a single equality duty, then current provisions in the duties must not be weakened eg the DED involvement criterion, the GED requirement for objective setting and the RED requirement to consult during impact assessment.

Will there be unintended consequences for disabled people or disability rights?

  29.  We firmly believe that there is a risk of developing some form of hierarchy of equality and that, if this were to occur, many of the more challenging aspects of establishing disability equality could be placed lower on the overall agenda than they might under single strand duties.

PRIVATE SECTOR COMMITMENT AND SUPPORT, GUIDANCE, ADVICE AND INFORMATION FOR EMPLOYERS

Is an Equality Duty on the Private Sector workable?

  30.  Although it might require a difference of approach, based on size and scale of operations, in principle we see no reason why private sector employers are any less able than those in the public sector to develop similar approaches to equality and to document these. We wish to point out, however, that the demands of enforcing the current duties within the public sector would need to be addressed in order for a sensible enforcement arrangement to be devised that is realistically manageable eg would the CBI be likely to be willing to play a role in performance managing compliance in the private sector? Greater attention should also be given to the role of procurement and the Office of Government Commerce and Treasury.

How can the Access to Work scheme better enable people to obtain, stay and progress in work?

  31.  The DWP Access to Work Scheme can be considered one of the most effective initiatives run to support the employment of disabled people, however PCS has the following issues with the scheme:

    27.1  Access to the scheme: Access to Work should be universal—it should be equally available to all employees regardless of who they may work for.

    27.2  Focus: this relates to its scope to address "reasons" for disabled people losing their jobs or failing to be employed. At present Access to Work focuses mainly on equipment and the provision of external "support" such as interpreter services, personal assistants and home to office travel. These are no longer the sole reasons for an employer seeking to dismiss a disabled person. A key issue now, certainly within public services, is attendance with the reason often cited of the impact that such absences have on colleagues and workload. Therefore an amendment to Access to Work terms that would allow employers to claim Access to Work funding to support temporary replacement workers, or even overtime by those left to manage an increased workload, should mitigate against the effects of such absences and lead to a greater level of job retention by such disabled workers.

    27.3  Promotion: Too few employers and disabled people are aware of its existence. It should be far more widely publicised and extra effort be applied to ensuring inclusive advertisement to those more marginalised from employment initiatives eg learning disabled people. All too often advisors employed to manage the scheme know too little about the disability from an equal rights perspective making the process a bureaucratic quagmire for disabled people.

    27.4  More flexibility generally in the scope of the Access to Work scheme to respond to need is also required—including needs that have not yet been identified.

What impact has there been on disabled people's entry to and progress in employment in central government departments since the Access to Work scheme was withdrawn?

  32.  It is practically impossible to assess the damage which may have been caused to the employment and retention of disabled people by the removal of Access to Work funding from central Government departments. The number of newly disabled staff who have lost their jobs, when the continued availability of Access to Work might have assisted in their retention cannot be estimated. How many line managers, faced with recruitment decisions, have opted for a non-disabled person, for fear of the budgetary impact of employing a disabled person will never be known.

  33.  We believe that evidence has been found, by those carrying out the research into the impact of the withdrawal on those directly affected, of applications for assistance that have been refused—but we will have to await the final report of that research before we know the scope of those cases, the impact that such refusal might have had on continued career prospects, etc.

  34.  However, the findings of earlier research into these points cannot be disputed. The University of York researched the impact of Access to Work in 2002 (http://www.dwp.gov.uk/jad/2002/wae138rep.pdf). This research clearly pointed to the importance of independent funding in the minds of employees—the knowledge that their funding was not impacting on colleagues in any way nor that they had to "owe a debt of gratitude" to their employer for providing such funding.

What would be the impact if the withdrawal was extended across the public sector?

  35.  The impact would be catastrophic. Already, arising from the rumour of such potential withdrawal, there is a groundswell of opinion amongst fellow trade unions organising in the wider public services that the impacts of wider withdrawal would lead to a closing down of employment opportunities for disabled people.

  36.  Modelled on the Civil Service approach to withdrawal, schools and colleges would have to make decisions on allocating budget resources to support disabled employees or student needs and education; hospitals and care trusts would have to balance their obligations to patients against the costs to be met for employees; local authorities would have to choose between services to local people and support for disabled employees.

SINGLE EQUALITY ACT

How does Disability fit in a single Equality Act?

  37.  The single Equality Act offers an ideal opportunity to move away from a specialist form of protectionism focussed on a limited group of individuals, defined not by the fact that they have an "impairment" but further refined by the nature, extent and duration of the limitations placed on their day-to-day functionality. It offers an opportunity to move towards an all-embracing piece of legislation which has the potential to protect anyone—in the same way that anyone can gain protection from the laws enacted to outlaw discrimination on grounds of sex, race, religion or belief, age or sexual orientation.

  38.  To do so requires a wider acceptance of the implications of the social model of disability—where disability is the impact of barriers placed to obstruct those with impairments. That wider implication has to be that those with impairments can live without being disabled (in the social model definition of the term) if all such barriers are removed.

Should the "social model", or "medical model" apply for disability?

  39.  The social model must be applied—the medical model of disability totally fails to explain the causes of and reasons for discrimination and disadvantage that disabled people face. Whilst it is recognised that for some proportion of the population a medical interpretation provides a valid picture of their condition, the efforts of the UK disability movement to achieve legislative recognition of the social dimensions of disability-discrimination based on a distinction between impairment and disability, should not be forgotten. This recognition, in the form of the 1995 Disability Discrimination Act, has provided a powerful tool for thousands of people disabled by subtle and non-subtle barriers in a society built for non-disabled people. Whilst legal gains have been made to improve the lives of many such people, significant challenges remain and more so with a projected increasingly ageing society whereby the incidence of impairment is greater.

  40.  Under the social model, disability is the equivalent of homophobia or racism. Disability is the societal exclusion experienced by people who have impairments. If the barriers to full participation are removed, then no-one will be disabled. In other words, people who have impairments would no longer be discriminated against on the grounds of those impairments.

  41.  The medical model is inherently discriminatory insofar as it sees disabled people as needing to be made more like non-disabled people so that they can fit in with "normal" society. If comparable thinking were to be applied to any other equality strand, its flaws would be immediately exposed. There would be justifiable outrage if we expected black people to be "less black" in order to gain acceptance, or gay men to "fit in" by behaving exactly like straight men. Any government that truly values diversity must shy away from an approach which expects members of any minority group to have their bodies or minds adapted to fit a supposed norm. It is not abnormal to have impairments, any more than it is abnormal to be, for example a woman, or a Muslim, or to be 78 years old.

November 2008







86   Lords Hansard, 12 Nov 2008, columns 656-657. Back

87   Sections 42-105 of the House of Lords Judgement on the case of London Borough of Lewisham v Malcolm, Session 2007-08 UKHL 43. Back

88   Sections 72-73 of the House of Lords Judgement on the case of London Borough of Lewisham v Malcolm, Session 2007-08 UKHL 43. Back

89   Section 35 of the House of Lords Judgement on the case of London Borough of Lewisham v Malcolm, Session 2007-08 UKHL 43. Back


 
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