Memorandum submitted by Local Government Employers


Local Government Employers (LGE) was created by the Local Government Association on 3 April 2006. LGE works with local authorities, regional employers and other bodies to lead and create solutions on pay, pensions and the employment contract, to ensure the provision of excellent and affordable local services. Working in consultation with, and on behalf of local authorities, regional employers and other stakeholders, LGE also represents local government employer interests on pay, pensions and employment issues. There are 410 authorities employing over two million people in England and Wales.


We have not responded to all the questions raised in the inquiry, but instead have responded to the three questions which are most relevant to local authority employers, and those questions are identified below.


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


1.1 The Equality Bill should ensure that employers' duties are made clear and that any potential conflict that exists currently between the  provisions of the Disability Discrimination Act 1995 ("the DDA"), as interpreted by the House of Lords, and the employment provisions of the Employment Directive are resolved.  At present, there is a risk that the DDA as interpreted by the House of Lords will not comply with all of the disability provisions of the Employment Directive, which cover both direct and indirect discrimination.  Whilst the House of Lord's interpretation of the DDA is sufficient to deal with direct discrimination obligation under the Employment Directive, it does not cover the indirect discrimination obligation, as it's interpretation means that a claim of disability-related discrimination under section.3A(1) of the DDA will be difficult to establish. 


1.2 Under section 3(A)(1), discrimination will occur where "for a reason which relates to the person's disability", the employer treats the disabled person less favourably than he "treats or would treat others to whom that reason would not apply", and that treatment cannot be justified.  Taking the example of the application of a policy, for example one on working hours that through its operation treats persons with a disability less favourably because they are unable to comply with it, then even without the need for any justification defence, then using the House of Lords analysis an employer would be able to defend its actions, provided it also applied that policy to non-disabled persons.


1.3 If the UK legislation does not comply with the Employment Directive, then not only is there a risk that it is open to challenge in the ECJ, but local authorities as emanations of the state are also open to challenges in the UK on the basis that the Employment Directive has direct effect against them.


2) How should the Government improve the protection of carers, following the decision in the Coleman case?


2.1 The disability discrimination provisions should be amended to provide protection to carers, where they are discriminated against on the ground of their association with a disabled person.  Employers are already familiar with the concept of discrimination by association on grounds of race, religion or belief or sexual orientation and, therefore, it will not be difficult for them to understand how it should apply in the case of disability discrimination.


3) How does disability fit within a single Equality Act?  Should the "social model" or "medical model" apply for disability?


3.1 The Equality Bill proposes to repeal the definition of disability based on medical grounds which means that an employee will no longer have to define their impairment in terms of their incapacity which the Disability Discrimination Act 1995 currently requires. The DDA requirement to define the issue in terms of the impairment is in line with the medical model of disability as it regards disability as a medical condition.


3.2 Removing this definition and moving towards the social model of disability will change the focus away from people's impairments and towards removing barriers that disabled people face in every day life. The social model takes the wider view that a disabled person's ability to undertake certain activities is limited by social barriers, not by their medical condition. Under this model, disability is managed by identifying and removing or altering the disabling barriers which are within the employer's control, such as management practices, or the way work is organised, or building design. This model does not deny the existence of impairment but rather addresses it without attaching value judgements such as 'normality' and changes the focus on to what aspects of the working world can be proactively adapted and changed.


3.4 The move to a social model for disability may eventually cause a cultural shift within the UK of employing people with disabilities but would not result in major changes for councils as employers because the current legislation (in line with EU Directive requirements) that requires employers to make 'reasonable adjustments' to their policies or practices or physical aspects of their premises already follows the social model of disability. By making adjustments, employers are removing barriers that, according to the social model, remove the person's disability. In addition, the Disability Discrimination Act 1995 introduced a new equality duty on public authorities in December 2006 to promote equal opportunities for the disabled. This duty requires councils to take additional steps to allow disabled employees to participate fully and equally in working life


3.5 To meet the disability equality duty, the employing council must involve disabled employees in producing equality plans that show how any policies or practices or physical environments the employer has that negatively impact on disabled people will be proactively reviewed and amended. By performing their disability equality duty, councils proactively assess the actual, potential or likely impact of the different aspects of employment, which ensures an inclusive approach to the employment or management of employees with a range of different needs, including disabled employees, which the social model of disability aims to achieve.


3.6 The proposal to use the social model of disability within the new Equality Act would in effect roll-out the disability equality duty to all employers. This would mean all employers would have to include disabled people and disability equality into all aspects of employment from the outset, rather than merely focusing on individualised responses to specific disabled people as required under the 'reasonable adjustment' obligations. The local government sector would therefore support this proposal.


3.7 Although the move to a social model of disability would encourage an inclusive and proactive approach in employing a range of people with different needs, it would not be possible for a council or any other employer to proactively anticipate the needs of every individual who may work for them or be recruited in the future. Therefore the need to have a legal definition of disability and a framework to support employers in assessing and reacting to the differing needs of their employees will surely remain. Whichever model of disability is applied, the Single Equality Bill will still need to provide legislation to instruct, monitor and enforce a standard of treatment for disabled employees.


26 November 2008