6. Memorandum submitted by Public
and Commercial Services Union
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.
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,
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
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
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
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
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
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 timehowever, 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 hoursmeaning 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 examplewhere
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
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."
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."
21. Other cases similar to the Malcolm
case exist, particularly in the employment fielda 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 peoplethey
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
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
aimswhether 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 workerstheir
employers or the government.
How should the Government improve protection of
carers in equality legislation, following the decision in the
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 personon 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.
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
27. Yes, it mustit 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.
How could a Disability Equality Duty in the public
sector be built upon within a Single Equality Duty? Is a Single
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 fullyand
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.
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 universalit 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 requiredincluding
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 refusedbut 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,
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 employeesthe 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
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.
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 anyonein 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 disabilitywhere
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 appliedthe
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.
86 Lords Hansard, 12 Nov 2008, columns 656-657. Back
Sections 42-105 of the House of Lords Judgement on the case of
London Borough of Lewisham v Malcolm, Session 2007-08 UKHL
Sections 72-73 of the House of Lords Judgement on the case of
London Borough of Lewisham v Malcolm, Session 2007-08 UKHL
Section 35 of the House of Lords Judgement on the case of London
Borough of Lewisham v Malcolm, Session 2007-08 UKHL 43. Back