Memorandum submitted by Employers' Forum on Disability


EFD is the authoritative voice on disability as it affects business, representing over 400 major employers in the UK. EFD works closely with disabled people, government and other stakeholders, sharing best practice to make it easier to employ disabled people and serve disabled customers.

EFD's mission is to mobilise the power of its members to promote the economic and social inclusion of disabled people. For 17 years EFD has been successful in driving forward employer engagement and sets the standard by which business and public sector measure their performance on all aspects of disability.


Summary of evidence


Employers' Forum on Disability (EFD) believes the Equality Bill is an opportunity to address inadequacies in current legislation. Our key points for the Select Committee to consider are:


Protection against disability discrimination should be extended to people perceived to have a disability and discrimination on the grounds of association with a disabled person.


Goods, services and facilities cases should be dealt with by the Tribunal system and disabled citizens should be made more aware of their rights as customers.


It will be important to ensure that the new Equality Bill sustains the requirement under the public duty to 'involve' not merely consult disabled people.


Access to Work is a good scheme but needs consistency of service provision and better promotion to those individuals and companies that do not use it. Jobcentre Plus and related contractors should automatically tell every disabled job seeker that the programme exists and how it might help them find and sustain employment.


Any new Equality Bill must ensure that employers do not lose the right to positively discriminate in favour of disabled people as they now can under the Disability Discrimination Act (DDA).


Government should appoint a Minister for Equality and Human Rights at Cabinet level.


DWP should continue to encourage those responsible for housing benefits to minimise the risks many disabled people associate with taking a job and losing their housing benefit.


It would be extremely helpful were DWP to make it clear that the barriers created by inaccessible technology are not acceptable. This includes inaccessible on line recruitment, inaccessible and unusable IT systems, and inaccessible 'e-commerce' processes. DWP and the legal framework must communicate that the legal obligations not to discriminate and to make reasonable adjustments apply even when it is technology which is creating the barrier.


Any new legislation must be supported by expert advice to employers as well as to disabled people - such advice should encourage employers and service providers to work to the spirit of the legislation and deliver best practice.


It would be helpful if DWP were to indicate how they plan to assess the effectiveness of the new legislation with regards to employment, given people rarely declare they have a disability to their employer. International and UK experience shows that monitoring the numbers of employees an employer can 'persuade to declare' produces statistics which are inherently unreliable and which do not drive the desired behavioural change. Monitoring the flow from benefits to tax payments would probably be more accurate and useful over time.


EFD would be happy to convene a sounding board of employers to advise at any stage - to help DWP ensure that the regulatory framework and supports are credible in the eyes of both employers and people with disabilities




1. The Government has the opportunity to use the Equality Bill to eliminate the inadequacies of the existing pieces of legislation. In principle, this opportunity allows us to strengthen parts of the individual legislation that are working and address those that are not. In order to achieve equality for disabled people and other disadvantaged groups our society needs to have a modern and consistent legislative framework that is fit for the 21st century - a framework that is credible to both employer and disabled people alike.


Equality in employment


2. Employment rates of disabled people have not increased significantly since the introduction of the Disability Discrimination Act (DDA) in 1995. Nevertheless, EFD believes that the DDA has contributed to increased equality for disabled people in the workplace. It has raised employer awareness and helped build disability competence into the normal way in which people do business.


3. Employers continue to find it difficult to attract qualified disabled applicants and providers that can help them. As a result, well-intentioned and enlightened employers can find it difficult to justify the time, cost and effort required to effect change internally. Those employers who continue to discriminate can justify so doing by pointing to the barriers and uncoordinated services in a system that does not treat them as a customer.


4. The DDA offers more protection for those in work than for those applying for work. The number of Employment Tribunal cases for discrimination in recruitment is far lower than the number for in-work discrimination. This may be because it is more difficult to prove discrimination in recruitment. It does indicate that the tribunal system is not currently fit for purpose as regards to recruitment.


5. The Government's early consultation on the Equality Bill (Summer 2007) indicated that it did not intend to extend protection from discrimination to people associated with disabled people or people wrongly perceived to be disabled even though this protection is available in other areas such as race. This did not sit well with the professed aim of harmonizing and simplifying the law. This statement was also made before the European Court of Justice decision in the case of Coleman v Attridge Law.


6. EFD hopes that as the Government has to reconsider its position on association in the light of this decision, it will do the same for perceived disability. EFD members in both the private and public sector felt that this protection should be extended, especially as it would simplify the law by providing consistency across the strands. It was noted that in neither case would there be a duty to make reasonable adjustments, as people wrongly perceived to be disabled would not need such adjustments and there are already regulations that provide some protection to carers who need to work flexibly. The Coleman decision was also clear that it was only the direct discrimination and harassment provisions from the EU Directive that applied to people associated with a disabled person.


7. The Government's argument that extending provisions on association would cover too many people is spurious since the race relations act and sex discrimination acts cover people of all races and genders respectively. People who fall into these categories either face the social evil of discrimination or they do not. If they do, they should in this society be afforded protection. There is evidence that people who are associated with disabled people, not just as carers but for example as the partner of someone who is HIV positive or related to someone with a mental illness do suffer discrimination. Similarly people who are wrongly perceived to be disabled e.g. because of period of ill-health in the past, mental or physical are denied employment opportunities, insurance or other financial products but have no redress because they do not actually meet the definition of disability.


8. The House of Lords decision in Malcolm v Lewisham, if followed in employment and goods, services and facilities cases as suggested in the decision has implications for cases of indirect discrimination. The Malcolm decision will reduce the number of successful claims for less favourable treatment for a reason relating to disability and this in turn will mean that there will be more reliance on the failure to make reasonable adjustments. In the case, for example, of a disabled person is dismissed for being persistently late, he would no longer be able to argue that he was dismissed for a reason relating to his disability even if his lateness was due to difficulty using public transport at rush hour. This is because, following Malcolm, the comparator would be someone without a disability who was also persistently late. If he too would have been dismissed then the disabled person had not been treated less favourably for a reason relating to his disability but for a reason relating to the lateness. The disabled person would therefore have to argue that the employer had failed to make a reasonable adjustment for him. If being on time is essential then the reasonable adjustment might be taxis to work but this will depend on Access to Work funding being available as it is unlikely to be reasonable for the employer to have to pay for taxis.


9. Similarly if someone does not get a job because of spelling and typing mistakes in a test they would not have been treated less favourably for a reason relating to their disability because a non disabled person would not have got the job if they had produced a report with the same mistakes. However, with the reasonable adjustment of voice activated software and other adjustments they might not make the same mistakes. Whether or not it is reasonable for the employer to provide such software will depend on its size and resources and the availability of financial help such as Access to Work. The new Equality Bill should be structured so as to minimise the potential of this ruling to undermine the rights of disabled people.


10. There is a danger that disability is increasingly seen as a welfare issue rather than an equality issue in public debate. Messages emanating from DWP and EHRC are inconsistent. EHRC talk about disability and employment in terms of equality and human rights. DWP however appear to see it as a welfare to work and a benefits issue.


11. Government also needs to be stronger on the message that disability and employment is about widening the talent pool for available jobs, not creating new jobs and minimise the inference that many disabled people on benefit are 'scroungers'.


12. The Equality Bill can open up opportunities in employment for disabled people in a number of ways. New legislation can trigger renewed employer engagement and a drive to set higher standards for best practice. Employers would welcome straightforward equality legislation that ensures everyone is treated fairly and neither conflicts with, nor contradicts other employment legislation or regulations.


Equality in goods, facilities and services


13. EFD members are concerned that the cost and procedural difficulties of bringing claims in the county and sheriff courts has resulted in very few cases under Part 3 of the DDA. This has helped neither disabled people nor businesses because important clarification and interpretation of the law provided by employment tribunals is lacking in goods, services and facilities cases. Having all discrimination cases heard by an Equality Tribunal would help employers and service providers to work to the spirit of the law as well as to meet their legal obligations by providing consistent decisions and so greater certainty.


14. EFD members would prefer goods, services and facilities cases to be dealt with by the tribunal system which is already better equipped to deal with discrimination cases. The employment tribunal already hears cases where there are other related claims for civil wrongs in other courts.


15. In goods and services cases, for example if a retailer insists all customers use chip and pin to pay for goods by cards this is indirect discrimination because it is a seemingly neutral rule that has a detrimental impact on disabled people who cannot remember a pin number. However it is not less favourable treatment for a reason relating to disability following Malcolm because a non-disabled customer who could not remember their pin number would be treated in the same way. It is arguable that this is in breach of the EU Directive's requirement for member legislation to have indirect discrimination provisions. Again the customer here would have to rely on a claim for failure to make reasonable adjustments. Whether or not this would succeed would depend on how much changing the retailer's systems would cost and if it is reasonable for them to bear the cost and disruption of accepting an alternative method given the retailer's size and resources. This illustrates the complexity of the customer legislation - complexity that requires the experience and expertise of the tribunal system that has already built up the required expertise on disability discrimination cases.


16. The message from Government needs to be that the customer legislation is as important as that protecting disabled people in employment. Any new Equality Bill must send the same message. Unfortunately part three of the DDA often lacks credibility in the eyes of service providers and disabled citizens alike, due mainly to its enforcement mechanism being in the county courts.


17. Many organisations that take pride in their reputation for customer care still overlook their disabled customers. In fact, many probably do not even meet their basic obligations in law. EFD runs a benchmarking audit for our members called the Disability Standard. Of the participants in the most recent survey, 73% do not anticipate the needs of over 10 million disabled customers and 79% have no relevant marketing plans. Only 43% of participants that were service providers ensure information is provided to disabled customers in accessible formats as required in law. A further 64% of participants operate inaccessible e-commerce systems.


18. EFD members are calling for the EHRC to provide an effective conciliation service for goods, services and facilities cases. This would give consumers and service providers better clarity of the law and a clearer process to follow when things go wrong.


19. Regarding the EU Directive, EFD brings the Select Committee's attention to the following sections:


a. "Persons who have been subject to discrimination based on religion or belief, disability, age or sexual orientation should have adequate means of legal protection. To provide a more effective level of protection, associations, organisations and other legal entities should be empowered to engage in proceedings, including on behalf of or in support of any victim, without prejudice to national rules of procedure concerning representation and defence before the courts."


b. "Member States shall ensure that associations, organisations or other legal entities, which have a legitimate interest in ensuring that the provisions of this Directive are complied with, may engage, either on behalf or in support of the complainant, with is or her approval, in any judicial and/or administrative procedure for the enforcement of obligations under this Directive."



The Public Sector Equality Duty


20. EFD members are broadly in favour of a single Public Sector Equality Duty. It would be less bureaucratic to have a single cycle for publishing schemes and will help public authorities to ensure that they are meeting all their statutory duties. However, EFD believes it is essential that each strand would be dealt with separately so that action plans are specific to that particular strand. This would ensure that matters unique to a particular strand are not overlooked.


21. A single public sector equality duty should also provide more scope for addressing issues of multiple disadvantage. In practice many public authorities are already producing or are working towards producing single equality schemes but there has been concern about whether in doing so they are meeting their duties under each single strand duty. Clear guidance and harmonised duties that do not retract from the current duties would be welcome.


22. The concern over the lack of goods, services and public function cases is relevant to the public sector duty. It is very difficult to promote equality when private and public sector organisations can say that they will "risk it" as there are so few cases against them having inaccessible websites and so on. This makes procurement less of a lever than it might be.


23. The public sector duty has in some ways not been well understood in the public sector. The importance of mainstreaming equality, especially in disability, has not been successful. The duty seems to be being interpreted as a tick box exercise, for example being about asking suppliers how many ethnic minorities or women they employ. This is as opposed to looking at barriers to use of a service or function. All too often there is assumed, wrongly, to be no equality angle to a policy such as rubbish collection and recycling, purchasing of a new telephone system or outsourcing security or catering. Impact assessments are not being conducted and the public sector seems simply to be collecting data on how many women, ethnic minorities or disabled people work for the supplier. This data is always unreliable relating to employees with disabilities.


Private Sector commitment and support, guidance, advice and information for employers


24. EFD has 17 years experience in providing advice and guidance to promote culture change in the private sector on disability is employment and provision of goods and services. Employers must be seen as valued customers in the system in order to remove the barriers they face in employing disabled people and serving disabled customers.


25. How one engages with the private sector depends on the person one deals with in the company. Equality traditionally sits within the Human Resources or Diversity department, departments which will have limited senior representation an influence. The focus of these departments is employment. However, when one deals with operational directors, the interest is often more on customer and new product development issues. Employers should not be treated as a homogenous group, nor should it be assumed that everyone within an employer will have the same interest. Messages need to be tailored to gain maximum engagement.


26. EFD does not believe that a separate Equality Duty on the private sector is desirable. It would be more practical and more effective to use public procurement contracts to promote best practice in the private sector. In particular we would welcome the support of DWP in encouraging every employer, public and private sector, to only use disability competent suppliers, particularly those suppliers which have a direct impact on the organisations ability to deliver adjustments for applicants, employees and customers. This includes occupational health services, recruitment agencies, IT suppliers and Facilities management .


27. In EFD's Disability Standard, the private sector was better than the public sector at positioning disability as a business priority. Twice as many private sector participants (39%) than public sector participants (20%) have made an effective economic and ethical case for disability equality and disability confidence in their organisations.


28. In EFD's Disability Standard, we found that 72% of private sector employers do not set disability objectives. Overall the public sector outperformed the private sector, scoring an average of 8% more. More public sector participants are meeting their legal obligations than in the private sector. In addition, more public sector organisations set goals and action plans that cut across departments and they are generally stronger on policy.


29. When looking at commitment to disability equality, effectiveness has to be measured. More public sector organisations measure the positive impact of taking disability equality action. However, more private sector organisations are doing it effectively. Private sector companies measure the positive impact of disability actions in quantitative (17%) and qualitative (22%) terms compared to 4% and 10% of the public sector respondents respectively.


30. Access to Work is a valuable tool that supports over 24,000 individuals in work each year while making it easier to persuade employers to invest in becoming disability confident. However, employers still have varying experiences with Access to Work, and there are aspects of the system that need improvement including consistency of service delivery. There is also concern among public sector employers that the removal of Access to Work funding for employees in central government departments is having a negative impact on the employment and promotion prospects of disabled civil servants. Those disabled employees whose departments are unable to fund the cost of their adjustments out of existing/central budgets may be placed at a disadvantage to non-disabled colleagues.


31. EFD welcomes the increase in funding outlined in the DWP "No one written off" green paper. However, it is not clear whether the additional funding will be allocated purely for making adjustments or whether a proportion of it will be given to better promoting the existence and benefits of Access to Work to employers and individuals. It is also a reasonably modest funding increase - a doubling of the budget in cash terms but only over the next 6 years.


32. Government needs to engage better with employers to ensure they get the support and advice they need and understand the benefits of employing disabled people and becoming disability confident. Many employers, and indeed disabled people, do not know what level of service to expect from Access to Work. This is partially a result of having received inconsistency of service in the past. EFD is working with Jobcentre Plus and DWP on employer engagement and Access to Work projects. These are designed to capture the direct experiences of employers and to streamline service provision to employers, disabled job seekers and employees, We urge government to continue to address employer concerns in the welfare to work system.


33. EFD would be happy to convene a 'sounding board' of employers to advise and support DWP as it drives this agenda forward.


34. Because the Access to Work scheme is not well understood by either employers or people with mental health problems, it is not widely used for adjustments that are related to mental health conditions. Employers commonly use Access to Work for assistance in funding pieces of equipment. If the full range of adjustments that the scheme offers was better publicised, employers and employees would be better equipped to use it for fluctuating and non-fluctuating mental health conditions.


35. EFD believes better understanding among individuals, intermediaries and employers of the adjustments that Access to Work can fund is crucial. Where individuals are required to undertake work-related activity such as training or interviews, it is essential that adjustments and Access to Work support are provided where needed. If they are not provided, and adequately funded, the individual will be unable to carry out their duties to the best of their ability. Sanctions should not be imposed on the individual if that support is not provided.


Equality Act


36. There are differences between disability and the other equality strands. Disability requires us to treat people differently to treat them fairly. Many people steeped in traditional equal opportunities thinking 'that we must treat people exactly the same regardless of the group to which they belong', still find this new obligation challenging and resist the implications for policy and practice. Yet progress has been made under the DDA and we do not want to see this lost under the Equality Act.


37. The social model of disability must apply. All the major disability charities accept the social model. EFD strongly believes that it will be a step backwards if there is a return to the medical model on disability. The Disability Rights Commission stated that the "individualistic medical model, disabled people are unable to participate in society as a direct result of their impairment. [...] A social model approach states that people with impairments are disabled by physical and social barriers. The 'problem' of disability results from social structures and attitudes, rather than from a person's impairment or medical condition." Using the social model of disability, employers are better able to make reasonable adjustments to enable them to use the service, buy good or services or work to the standard required by the employer.


38. DWP may find the business rationale for becoming disability confident, which presents the benefits to the business of taking a social model approach, a useful communications tool when setting out to engage employers on this agenda.


39. EHRC has a unique role as the only public organisation that has responsibility for all equality and diversity strands. The division of responsibility within government departments is confusing and surely undermines the effectiveness of any single equality legislation. Disability is dealt with by Office for Disability Issues via Department for Work & Pensions; responsibility for equality is with Government Equalities Office (GEO); and employment rights and workplace dispute regulations are dealt with by Department for Business, Enterprise and Regulatory Reform. It would send a powerful message to the nation were the government to appoint a Minister for Equality and Human Rights with a seat at the cabinet table.


40. EFD understands the role of the Office for Disability Issues (ODI) to be to monitor government policy as it affects disability across all government departments. This makes it in some sense an internal disability audit office. However, in practice it seems that other government departments regard ODI as having exclusive responsibility for disability. This leaves ODI, a relatively small department, taking the lead on disability across all policy areas including employment, education and housing - clearly a massive remit.


41. EFD is concerned that the separation between GEO and ODI will mean that disability issues will not be adequately understood or dealt with within equality legislation. This fear is particularly acute given that GEO have a small staff team and thus limited capacity to build up expertise across all diversity strand areas.



November 2008