1.1 Memorandum submitted by Trades Union Congress

Introduction

1.1 The TUC represents 58 affiliated unions with a total 6.5 million members, working in a wide range of organisations, sectors and occupations. Our affiliates regularly represent workers suffering discrimination or harassment, and they work with employers in raising awareness of equality issues and developing related policies and practice. The TUC has a long history of campaigning for equal rights and fighting discrimination both in the workplace and wider society. We have four equality committees dealing with issues related to race, women, disability, and lesbian, gay, bisexual and transgender status and there are annual delegate conferences for each of these strands.

2.1 Summary of main points

2.1 The TUC supports the creation of a single Equality Act as it should provide a clearer, more consistent legal framework and address some of the problems with compliance and enforcement of the discrimination law.

2.2 For disability, it will lead to a welcome harmonisation of provisions across all sections of the current DDA and for age it will significantly extend the protection from discrimination outside of the employment field. It is hoped that it will also plug the hole left in disability discrimination law by the recent House of Lords ruling in the Malcolm case and extend some protection to carers through measures to respond to the ECJ's ruling in the Coleman case.

2.3 The TUC is concerned by the suggestion that an indirect disability discrimination provision could be introduced into the Equality Bill to replace the current disability-related discrimination provision, which the House of Lords undermined in Malcolm. We would prefer the disability-related discrimination provision to be revised by removing the need for a comparator, as has been the case with pregnancy discrimination.

2.4 In responding to the ECJ ruling in the Coleman case, the Equality Bill should contain a prohibition on associative discrimination on all grounds (it currently already applies to race, sexual orientation and religion or belief and the ECJ ruled it should apply to disability). In particular, extending it to disability and age will give added protection to carers. In addition, consideration needs to be given to preventing discrimination and harassment based on perceived disability as a result of the judgment.

2.5 The creation of single public sector equality duty is welcome, but we are concerned that the existing provisions are not diluted and specific requirements such as the duty to involve disabled people in the development of equality schemes, is retained.

2.6 A positive equality duty could be applied to the private and voluntary sectors and the TUC has argued for such a duty. In the absence of a duty, it is essential to build equality considerations into public procurement to drive good equality practice into the private and voluntary sectors. In the Equality Bill, there needs to be a clear statutory requirement placed on public bodies to pay due regard equality in public procurement.

2.7 Access to Work has the potential to assist many more disabled people gain and retain employment, with more funding and more publicity. It can be improved upon in terms of the speed of delivery and portability of the support provided. Withdrawal of AtW funding from the wider public sector could have potentially catastrophic consequences for many disabled workers.

2.8 The TUC is concerned by the proposals that disabled Employment and Support Allowance claimants will have to be available for employment and be applying for jobs or risk losing their benefits. For many, this will mean years of applying for jobs they are unlikely to get, given the ongoing discrimination against disabled people, which in turn will lead to stress, loss of self-esteem and deteriorating health.

3.1 Equality in Employment

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

3.1 The employment rates of working age disabled people have improved since the DDA was first introduced from around two-fifths to a half. But still the fact that only half of working age disabled people are in work compares badly with the approximately four-fifths of non-disabled people that are in work. The Equalities Review in 2007 found that disabled people experienced one of the highest penalties when trying to secure employment. As it said: "Not only are disabled people generally more likely to be out of work, but they are also more likely to exit work and, once out of work, they are less likely to move back into employment than non-disabled people and other groups." Disabled people are also likely to earn less and to achieve lower occupational status relative to their educational qualifications. Despite the DDA, discrimination continues to undermine disabled people's job prospects. In a CIPD survey, a third of employers admitted that they discriminated unlawfully against disabled people.

3.2 The TUC is concerned by the Government's proposals that Employment and Support Allowance claimants will have to be available for employment and apply for jobs, like unemployed people claiming JSA, with only those with the most severe impairments being exempt. For many claimants, the new regime will mean years of having to apply for jobs they know they are unlikely to get; this in turn will lead stress, loss of self-esteem and deteriorating health conditions. On the whole, the Government is right to say that "work is good for you", or rather, that decent work is good for you - badly-paid, insecure work, with poor terms and conditions is not good for most people. In particular, the experience of repeatedly applying for jobs one fails to get is not good for anyone.

3.3 The Government is far too optimistic about the likely experience of disabled people subject to this new system. In the past, Incapacity Benefit claimants who have tried to return to employment have found that this is much more difficult for them than it is for most unemployed people. All too often, those who get jobs can only get short-lived jobs with low pay rates. The Government should re-think these proposals, as well as reforming discrimination law and improving the AtW scheme to ensure better employment opportunities for disabled people.

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

3.4 By bringing together our existing discrimination laws into a single Act the Equality Bill provides a valuable opportunity to create a harmonised legal framework that makes it clearer to workers and employers what their rights and duties are; to ensure there is comprehensive protection from discrimination by removing any unjustifiable inconsistencies or exemptions; and to consider new ways for improving enforcement and compliance with the law to achieve greater equality of opportunity.

3.5 In particular for disabled people, the Equality Bill has provided an opportunity to review the inconsistencies and varying levels of protection that exist across the different parts of the current Disability Discrimination Act. When this Act was introduced in 1995 it was targeted at disability discrimination in the employment field and it has since been extended to cover goods, facilities and services, public functions and premises but with slightly different definitions and standards of defence across the sections of the Act. In addition, the original employment provisions have been amended to incorporate the provisions of the Framework Equal Treatment Directive (2000/78/EC) but these were not applied outside of employment. By developing a clearer legal framework, more consistent protection across all areas, and creating common reasonable adjustment duties, the Equality Bill has the potential to create a more inclusive society for disabled people and thereby improve access to the workplace.

3.6 As well as creating more consistent legal protection, the Equality Bill provides an opportunity to address the recent rulings in the Malcolm and Coleman cases. It is hoped that the Bill will restore the rights of disabled people to the pre-Malcolm position and will expand the coverage of the protection from discrimination in line with the ECJ's ruling in Coleman.

3.7 Carers will benefit from the Equality Bill if the law is amended to protect those who associate with disabled people, as required by the Coleman ruling. Other carers may also benefit if the law is amended to provide protection from associative discrimination on grounds of age.

3.8 By extending protection from age discrimination outside of employment, it is likely that further progress will be made in opening up employment opportunities for older people, as what happens in the workplace and decisions that determine access to it and promotion opportunities within it, reflect the degree of equality of opportunity that exists in wider society for older people. However, clearly one of the greatest obstacles to improving employment opportunities for older people is the continued existence of the statutory default retirement age and this is going to be retained in the Equality Bill, albeit that the Government has a commitment to review it in 2011.

3.9 The Equality Bill contains proposals to improve enforcement and compliance with discrimination law. In particular, it is intended that tribunals be given extended powers to make recommendations that employers amend their policies or practices. Potentially, with proper oversight and training of the judiciary, such tribunal recommendations could help ensure lessons are learned from discrimination cases and actions are taken to prevent similar situations arising in the future, rather than the sole remedy for discrimination being financial compensation for past events.

3.10 On enforcement and compliance, the TUC and trade unions have argued throughout the Equality Bill process that union equality representatives should be given statutory recognition and rights to facilities time to enable them to perform their duties and attend training relevant to their role. Workplace equality representatives can: help raise awareness of equality issues in the workplace; ensure there is an employee voice in any diversity or equal opportunity initiatives the employer is undertaking; provide guidance and signpost disabled members (and others potentially facing discrimination) to appropriate assistance; and help ensure that collective policies and practices consider the needs of disabled workers and others from under-represented groups.

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

3.11 The Equality Bill must address the decision in Malcolm. The TUC believe cases are being dropped because of the restrictive interpretation the House of Lords has given to the concept of disability-related discrimination in this ruling. In one example that has been brought to our attention a trade union representative had to tell a disabled worker who she had been representing that it was now unlikely she would be able to succeed in challenging her disability-related dismissal. The member was reported to be devastated and it is not clear what other redress she now has.

3.12 The Equality Bill can respond to the decision in Malcolm and reinstate the concept of disability-related discrimination by removing the requirement to identify a comparator in such cases. The Sex Discrimination Act was recently amended to remove the requirement for a comparator in cases of pregnancy discrimination. It now simply provides that a woman has been discriminated against if she is treated less favourably on grounds of her pregnancy. Establishing the specific concept of pregnancy discrimination in law and removing the comparator requirement follows an absurd history of tribunals and courts trying to identify appropriate male comparators for pregnant women in order to establish sex discrimination, rather than simply focusing on what the reasons for the less favourable treatment of the pregnant woman were.

3.13 Removing the comparator requirement in cases of disability-related discrimination would focus attention on the nature of the less favourable treatment suffered by the disabled person and whether it was related to the disability, and would avoid the kind of knots the House of Lords tied itself in when trying to identify who the appropriate comparator should be for a disabled person in cases of disability-related discrimination. It would reinstate the pre-Malcolm position, i.e. that there should be recognition that a blind man escorted by a guide dog is not in the same position and should not therefore be compared to a sighted man with a dog, and a disabled person with a long-term absence due to his disability is not to be compared with a non-disabled person with a similar sickness absence record. Otherwise, as Baroness Hale said in Malcolm, if Parliament had intended a comparison to be made with people who were not disabled and therefore did not require any kind of accommodation for a disability, then it would not have felt the need to introduce a direct discrimination provision into the employment section of the DDA in 2004. This direct discrimination provision does rely upon a comparison between a disabled and a non-disabled person with similar capabilities or in similar circumstances, but it should be remembered direct discrimination can never be justified. By contrast, organisations can defend their treatment of a disabled person under the disability-related discrimination provisions, if there is a material and substantial reason justifying it, which further suggests that it was intended to be interpreted more broadly than direct discrimination.

3.14 It appears that Government may be considering introducing into the Equality Bill, an indirect disability discrimination provision in order to address the hole in protection left by the Malcolm ruling. While the TUC supports the application of indirect discrimination to disability (it applies to all other grounds), we had argued for its introduction in addition to the disability-related discrimination provisions. Indirect discrimination has a group focus, as it compares, for example, women to men and assesses whether they have been placed at a particular disadvantage because of a provision, criterion or practice that has been applied equally to them. In responding to the DLR Green Paper we thought the DDA would benefit from having this additional group-based concept as we believed it would encourage organisations to think pre-emptively about whether their premises or employment policies and practices would tend to disadvantage disabled people as a group and take some action to alleviate the disadvantage, rather than only responding to the problems of a particular disabled individual when they experience a substantial disadvantage as a result of their practices.

3.15 However, we are concerned that introducing the concept of indirect discrimination as a replacement for disability-related discrimination could be an insufficient remedy to Malcolm, as disabled people are far from being a homogenous group. The law must still encourage employers to respond directly to the disabilities and barriers particular individuals face. There is a danger under indirect discrimination that a disabled individual who has suffered substantial disadvantage as a result of an organisation's policies or practice is left without any challenge, because it is established, through group comparisons, that in general people with their particular disability would not have been disadvantaged by a particular provision, criterion or practice, even though in actuality that disabled person was disadvantaged.

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

3.16 The Bill must make clear that discrimination and harassment on the grounds of disability covers those who associate with a disabled person if they are subject to discriminatory treatment or harassment because of that association. These 'associative discrimination' provisions should also be extended to age and could therefore offer protection to carers of older people, for example. While the Coleman case concerned the mother of a disabled child and focused on the compatibility of UK disability discrimination law with the Framework Equal Treatment Directive, the same issues could be raised in relation to age, as the provisions of the UK age Regulations (like the DDA) only protect individuals from discrimination suffered on the ground of their age (or their disability) whereas the Directive refers more broadly to discrimination "on grounds of age".

3.17 While these amendments would be very welcome, the protection for carers would still be patchy and unclear within the Equality Bill. In addition to the protection carers could get in the future by claiming associative discrimination, at present, female carers can claim indirect sex discrimination if they are denied access to flexible working or similar measures, as it is recognised that women still make up the majority of carers in society and are likely to be disadvantaged by such a refusal. However, male carers have less back up from discrimination law when trying to access such accommodation of their caring responsibilities.

3.18 The TUC had argued in response to the DLR Green Paper that a specific 'carer' ground should be introduced into the Equality Bill. Other jurisdictions include such a protection, for example, Ireland's Employment Equality Act offers protection from discrimination on the ground of family status and the Northern Ireland s.75 single equality duty includes a 'person with dependents' ground. Incorporating a 'carer' ground would provide more transparent and comprehensive protection for carers and could encourage a move away from our gendered perception of who should do the caring, as male carers would have the same protection as female carers.

3.19 Another aspect of legal reform that could be raised by the Coleman case is whether the measures in the Directive aimed at preventing discrimination "on grounds of disability" also means that those who are perceived to be disabled and are discriminated against or harassed on that basis, should be protected under the law. In the TUC's view, as we argued in our response to the DLR Green Paper, they should be. Individuals should not have to first prove that they suffer from some medical condition that meets a statutory definition of disability before they can challenge the disadvantage they have suffered on that basis. The Advocate General in Coleman said: "The Directive does not come into play only when the claimant is disabled herself but every time there is an instance of less favourable treatment because of disability". The ECJ noted that the prohibition on discrimination "applies not to a particular category of person but by reference to the grounds mentioned in Article 1".

4.1 Equality in Goods, Facilities and Services

How could the duties in Goods, Facilities and Services of the DDA be built on to deliver systemic change?

4.1 At present there is an anticipatory reasonable adjustment duty in goods, facilities and services provision in the DDA. The anticipatory nature of this duty is an improvement on the duty in the employment field, however it has a higher trigger point and goods and services providers have a defence for not making adjustments. The TUC welcomes the harmonisation of the trigger point for the duty downwards to the level that exists in the employment field (i.e. goods and services providers will have to take action where a disabled person is placed at a 'substantial' disadvantage rather than where accessing goods or services is 'impossible or unreasonably difficult' for them). We also welcome the removal of the defence for a failure to make a reasonable adjustment - this was something we had argued for in response to the DLR Green Paper.

4.2 The specific exemption for transport providers could be removed in the Equality Bill as it causes confusion about how the law applies to transport. Better accommodation of the needs of disabled people by transport providers would have a substantial impact on the mobility of disabled people, their participation in society and access to employment opportunities.

4.3 Much more needs to be done to raise awareness of the legal obligations the DDA has placed on goods, facilities and service providers and more needs to be done to improve enforcement and compliance with the law.

What is the draft Directive in GFS proposing and what are the implications for UK law? Is the draft EU Directive welcome? Does the Equality Bill incorporate the provisions of the draft Directive?

4.4 The draft Directive proposes extending anti-discrimination provisions on age, disability, religion or belief and sexual orientation beyond the employment field. As legislation covering GFS already exists in the UK for all these grounds, except age, action in the UK will mainly be around checking compliance of these provisions with the Directive. It is proposed in the Equality Bill that the protection from age discrimination should be extended to GFS and the Directive will require this to happen.

4.5 The Directive is welcome. The TUC supported its adoption as it provides an important levelling up of European anti-discrimination provisions (for sex and race there is already EU legislation covering GFS). EU citizens should be entitled to the same level of protection and businesses should be bound by the same common equality standards wherever they are operating in the Community.

4.6 The Equality Bill proposes that the provision of 'justified' age-differentiated services will be allowed to continue (e.g. free bus passes for older people, young persons' railcards, priority flu jabs for over 60s, some financial services where supported by actuarial data). As currently drafted the Directive will allow this as it allows the provision of differences of treatment on grounds of age where justified by a legitimate aim and the means of delivering it are appropriate and necessary, and it says this will not preclude the fixing of ages for access to education or certain goods and services. The Equality Bill proposes to set a minimum age limit of 18 for the prohibition on age discrimination in GFS but there is no age limit in the draft Directive. On disability, the Directive requires a prohibition on indirect disability discrimination and an anticipatory reasonable accommodation duty for disabled people, which may influence what the Government proposes in response to the Malcolm case. However, it should be noted this would not prevent the continuation of a revised disability-related discrimination provision as well.

 

 

 

 

 

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

4.7 There are many reasons why very few cases alleging discrimination in goods, facilities and services provision currently find their way to court, which include the ease of access to legal representation, the lack of a lengthy or ongoing relationship with the provider (unlike in employment where there is a real interest in addressing the discrimination and seeking redress), and insufficient remedies to make bringing a case worthwhile. But probably key amongst the reasons for not bringing claims are the costs involved and the fear of being required to pay the respondent's costs if the claim is unsuccessful (this is unlikely to be the case in an employment tribunal). When claimants do make their way to court, they will usually find themselves in front of judges who are likely to have little or no experience of discrimination claims, as there are so few GFS claims that go through the civil courts, and those judges will not have been trained specifically in discrimination law.

4.8 There should be greater financial support for bringing cases, improved access to legal or specialist advice for potential claimants and more specialist training for judges. However, the proposal put forward in the DLR Green Paper that there would be a few specially trained judges sitting in a few courts around the country, to which GFS discrimination cases would be directed, is not welcome as it would reduce accessibility for disabled people, carers and pensioners.

Should discrimination by association extend to GFS?

4.9 Yes. There is no principled reason for providing for it with respect to employment but not to the other areas covered by the law. The only reason not to do so would be that EU law does not specifically require it. However, as there is a draft Directive which proposes extending EU provisions to GFS then it would make sense for it to be extended in the Bill to prevent confusion and further legislation in a few years' time.

5.1 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? Will there be unintended consequences for disabled people or disability rights? Has the Disability Equality Duty been effective in promoting equality in the public sector, including local government?

5.1 Evidence suggests that important progress has been made by public bodies that have taken seriously their obligations under the existing Disability Equality Duty, although not all bodies fall within that description, which is why effective compliance and enforcement activities are essential.

5.2 The former DRC took some important early steps to promote enforcement and compliance with the Disability Equality Duty in the first year, providing helpful advice and guidance on the duty (e.g. for disabled people and for sectors), checking whether public bodies had produced equality schemes, writing to those that had not, and carrying out more in-depth checks of the schemes produced by central government departments, strategic health authorities and regional development agencies. This kind of activity must be continued by the EHRC and it must be provided with the resources to enable it to carry out this work. There are concerns, however, that the EHRC has not properly followed up on some of the earlier work done by the previous Commissions. The Single Duty will make even more demands on the EHRC and so it must be provided with sufficient resources to lead on this work and to form effective partnerships with other bodies to promote compliance and enforcement.

5.3 The TUC supports the creation of a Single Duty covering seven grounds (race, disability, gender, gender reassignment, sexual orientation, religion or belief, and age) as proposed in the Equality Bill. Such a Duty will ensure action is taken across all grounds and will not lead to an unjustified prioritisation of some grounds over others. It should also encourage public bodies to consider action to address discrimination on multiple grounds and improve compliance as public bodies will not have three separate sets of requirements and timelines to comply with, as is currently the case under the existing three duties. However, we are concerned that the existing duties should not be diluted, as appeared to be suggested by the DLR Green Paper. We welcome the changes in the proposals, as set out in the White Paper, and the commitment to retain the same structure as the existing duties. But we still do not know how the new general duty will be framed. Furthermore, there has been no commitment to retain some of the specific requirements from the existing duties, in particular, with respect to disability, it is important to retain the duty on a public body involve disabled people in what they are doing.

5.4 There are fears that the Single Duty might dilute the attention that is given to disability or that the specifics of disability discrimination might be lost sight of. However, if a Single Duty is effectively implemented with proper steps taken to (a) engage effectively with disabled people (staff, service users, local communities) and (b) it is effectively monitored and reviewed, then it need not be a weaker option. But effectively delivery under a single scheme will also require public bodies to keep in mind what usually distinguishes disability from other equality grounds: that to achieve equality of outcome, more favourable treatment is often required. It should be noted that while it is important to create a common set of standards in a Single Duty, if there are strongly reasoned arguments for having a differentiated approach or a specific requirement to meet the needs of a particular strand, such as disability, then could be accommodated within the drafting of the new Duty. A Single Duty does not have to mean a completely harmonised approach, so long as any differences between strands are based on principled reasons and are aimed at improving equality of opportunity.

How could procurement be made a more effective lever for equality outcomes? What are the good practice examples in the public, private and voluntary sectors? How can guidance on procurement improve at EU and national level to make procurement a more effective lever for equality outcomes?

5.5 The TUC believes that procurement could be more effectively used to drive good equality practice into the private and voluntary sectors, particularly in the absence of any positive equality duties on organisations in these sectors. At present, there is a lack of clarity about what public bodies should be doing on equality and procurement. As procurement is a function of a public body it is captured by the requirements of the race, disability and gender equality duties, those people responsible for procurement in public bodies often seem unaware of this obligation. Guidance from the Office of Government Commerce to procurement professionals has tended to emphasise the constraints of EU Procurement law rather than positively stating what can be achieved on equality through procurement (or mentioning EU law requirements on anti-discrimination or the requirements of the public equality duties). It is understood that the OGC and Government Equalities Office are currently working together to produce more effective and positive guidance on equality and procurement. In addition, the TUC has argued for a stronger, clearer duty on the face of the Equality Bill requiring public bodies to pay due regard to the need to promote equality and tackle unlawful discrimination through procurement.

5.6 There are examples of good practice on equality and public procurement in some parts of the UK. For example: in Northern Ireland, the NI Equality Commission and the Central Procurement Directorate have jointly published guidance on equality and procurement, with a number of good practice examples to encourage activity in this area; West Midlands Local Authorities have come together to develop the West Midlands Common Standard, which is a common set of questions that can be used at the pre-qualification stage to get contractors to demonstrate that they comply with non-discrimination requirements in employment legislation; GLA has shown leadership on socially responsible procurement by adopting a Responsible Procurement policy; Unison's local government branch in Newcastle has reached an agreement with Newcastle City Council permitting them to review tender documents and interview contract bidders about level of service and proposed terms and conditions.

6.1 The Private Sector

Is an Equality Duty in the Private Sector workable?

6.1 The TUC has called for positive equality duties to apply to the private and voluntary sectors. The reason such an approach was adopted in the public sector was a recognition that discrimination often arose from structural issues or organisational culture, relying upon individual victims to enforce discrimination legislation in a backward-looking way was insufficient to deliver change. The onus should be shifted onto the organisations themselves to take steps to prevent problems arising in the first place. The same issues and arguments can be applied to the private sector for adoption of positive equality duties. Further, among those private sector organisations that are taking steps to ensure equality of opportunity they are adopting the same kind of measures as those that are set out in the public duties to ensure good practice, i.e. monitoring the workforce, consulting those employees affected by inequalities, publishing action plans, and reporting on progress.

6.2 An equality duty for the private and voluntary sectors would not have to exactly mirror the requirements of the public sector. It could be phased in, for example, applying to large private sector organisations initially and just to the employment function, rather than the goods and service delivery functions. Such a duty should require organisations to report on inequalities, give explanations for reasons behind them, take actions to address them, consult with the workforce, and regularly review progress.

What can be done in the realm of light-touch regulations, guidance and advice to promote culture change in the private sector for all those subject to discrimination? What can be done to support SMEs to achieve greater equality for disabled people?

6.3 Evidence from disabled people, from unions and from surveys (such as those previously carried out by the DRC) confirm some critical facts: (a) there remains widespread ignorance of what the DDA requires, and this ignorance is greatest among SMEs; (b) there remains widespread ignorance of who is covered by the DDA, including among disabled people themselves, and this ignorance is greatest among SMEs; (c) in consequence, it is not surprising that there continues to be discrimination against disabled people among private sector employers. It seems that there has been some welcome advances in understanding and commitment among some larger private sector employers (as various surveys and reports from the Employers Forum on Disability show, for example) but the single largest impediment to the employment of disabled people remains employer discrimination, especially where the issue is mental health. The current light-touch regime has not brought about a significant increase in the employment of disabled people and there is plenty of advice available for those good practice organisations that are willing to heed it.

6.4 Improving retention of disabled employees has to become a top priority, as many disabled people lose their jobs when their condition changes and given the high unemployment rates for disabled people they will face considerable difficulties when trying to regain employment. Among the legislative steps that could be taken to promote retention is the introduction of a statutory right to 'disability (rehabilitation) leave' as a reasonable adjustment on the face of the Equality Bill.

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

6.5 The TUC welcomed the announced increase in the AtW budget, which was something we had campaigned for over many years. AtW has the potential to assist many more disabled people to obtain or retain work, although to achieve this much greater publicity will need to be given to the scheme than hitherto. For smaller employers - whether in the private or the public sector - the availability of AtW funds can be the difference between employing and not employing a disabled person. For disabled workers, as well as helping them to access employment, the existence of independent funding is important for their dignity, as they do not feel they have to 'owe a debt of gratitude' to their employer or worry that the funding is having an impact on colleagues. AtW can be improved, however, for example, there are still issues about the speed of delivery and portability that need to be resolved if it is to achieve better adaptability to the needs of both employer and worker.

 

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

6.6 Evaluation of the withdrawal from central government departments is ongoing and in the absence of that information it is not possible to reach conclusions about the impact, in particular on the recruitment of new employees. However, many public sector employers are small organisations with limited budgets and a generalised withdrawal of eligibility for AtW from the public sector would have catastrophic consequences for many disabled workers. More funds do need to be targeted at the private sector, especially SMEs, from the increase in the total AtW budget, but this should not happen by removing funding from public sector organisations.

7.1 Single Equality Act

How does Disability fit in a single Equality Act?

7.1 While the achievement of disability equality may warrant a particular approach, for example, a provision governing disability-related discrimination and a reasonable adjustment duty, which differs from other grounds, disability does fit within a single Equality Act. The adoption of a single Equality Act does not require a completely harmonised approach to all the grounds. It should merely ensure that where there are differences of approach these are based on principled arguments and proper consideration of what will most effectively achieve equality of opportunity. In the case of disability equality, there must be recognition of the fact that different treatment will frequently be required to enable disabled people access to the same opportunities others have, and that there has to be consideration of the particular circumstances of the individual to ensure that any adjustments provided achieve what they are intended to.

Should the 'social model' or 'medical model' apply for disability?

7.2 The Government has decided to retain the 'medical model' approach to disability in the single Equality Act. The TUC supports the 'social model' approach. Its incorporation in the Equality Bill would have helped achieve a more significant change in culture and attitudes, shifting the focus onto the removal of barriers and the creation of a more inclusive society rather than seeing disabled people themselves as the problem.

November 2008