Memorandum submitted by Trade Union Disability Alliance

Introduction:

 

1.The Trade Union Disability Alliance (TUDA) brings together disabled trade unionists with affiliated branches and trade unions from across the trade union movement to move forward on issues affecting all disabled trade unionists.

2.TUDA welcomes the Committee's inquiry into the proposed Equality Bill and the opportunity to submit written evidence.

 

Key Issues:

 

Key issues

 

The Equality Bill provides an opportunity to make it easier to address discrimination against disabled people.

We welcome the proposal for an EC Equality Directive which would help address non-employment areas across Europe. The Government needs to anticipate the new obligations in the Equality Bill.

The Government needs to ratify the UN Disability Convention as soon as possible and without reservations or interpretive declarations.

Our priorities for the Equality Act are:

o A comprehensive definition of discrimination that effectively addresses inequality and structural disadvantage of disabled people.

o Extending protection to those associated with disabled people

o Preserve existing rights of disabled children in education.

o Retain the key principles of both the general and specific disability equality duties.

o Extend the Public Sector duty to the private and voluntary sector.

o Strengthen the enforcement of the legislation.

Maintain and extend the Access to Work Programme

Monitor the implementation of the Equality Act.

 

 

 

An Equality Bill is needed:

 

3.Despite the Disability Discrimination Act disabled people still experience vastly unequal outcomes:

 

21% of disabled people aged 16-24 have no qualifications whatsoever, compared to 9% of non-disabled people of the same age - an 11% gap

Disabled young people are 40% as likely to go into higher education aged 18 as non-disabled 18 year olds

Although the number of disabled pupils participating in higher education has since increased year on year - the gap has continued to widen as participation by non-disabled people has grown much more rapidly over the same period[i

Only half of disabled people are in work compared with over four fiths of the non disabled population.

 

4.The legislation has been further weekend by the Malcolm Judgement and the current legislation is not easy to enforce.

The International Context:

5.The UN Convention is a chance to strengthen the rights of disabled people but the UK Government needs to sign and ratify both the Convention and Protocol without delay or reservations.

6.Of particular concern is the intention signalled by Ministers to place an interpretive declaration and to reserve on article 24, thus reneging on the principles of inclusive education.

7. We also welcome the European Commission's proposal for a non-discrimination directive, however this is likely to be passed after the Equality Bill and therefore the Bill needs to anticipate the directive by including things such as protection from discrimination and harassment because of association with a disabled person.

Defining Discrimination:

 

8. TUDA is very concerned by the Malcolm Judgement in the House of Lords which appears to have removed disability related discrimination. The following example was given in the House of Lords judgement:

 

A blind person with a guide dog enters a restaurant. The restaurant has a no-dogs policy, and the owner refuses to make an exception for the guide dog.

 

Before Malcolm: the blind person is compared to a person without a dog. The person without a dog would not have been barred from the restaurant. Therefore less favourable treatment has taken place.

 

After Malcolm: the blind person is compared to another person with a dog (not a guide dog). That person would also have been barred. Therefore no less favourable treatment has taken place (although there may still be failure of duty to make reasonable adjustment).

 

9.The current text of the EC Directive outlaws indirect discrimination and welcome the Government's intention to outlaw indirct discrimination through the Equality Bill. However, we do not believe that this will overcome the Malcolm Judgement.

10.The only solution to Malcolm is to remove the requirement for a comparitor and provide that:

"A person would discriminate against a disabled person where he carries out an act which disadvantages that person for a reason connected with their particular disability, and which cannot be justified as being a proportionate means of achieving a legitimate aim."

Before a justification could apply the employer/landlord etc must have complied with the reasonable adjustment duty

11. We also believe that to establish disadvantageous treatment there should be no requirement to know about the individual's impairment.

 

12.We welcome the Government's proposals around the use of substantial disadvantage as a trigger for the duty to make reasonable adjustment and to introduce an objective justification for disability-related discrimination (and not have one for direct discrimination, harassment or reasonable adjustment duty)

 

Association with a Disabled Person:

 

13. The Coleman v Attridge case brought in July 2008 to clarify the purpose of the Directive 2000/78, confirmed that the principle of equal treatment enshrined in the Directive in that area applied not to a particular category of person (i.e. a disabled person) but by reference to the grounds mentioned (i.e. for reason related to disability). Protection therefore extends to individuals who are victims of discrimination because they are associated with a disabled person. We believe that the Equality Bill should explicitly include this form of discrimination by association.

14 We are also disappointed that the Government is not proposing to cover perceived discriminatiion in the Bill and ask the Government to reconsider this issue. Section 146 of the Criminal Justice Act 2003 already protects those who are vicitims of hate crimes because of perceived discrimination.

 

Education:

 

15 ]We would like clarification as to whether the existing rights relating to disabled children for the DDA and Special Eductional Needs and Disability Act (SENDA) will be retained.

16 Whilst we welcome the work that the Government has started to stop bullying of disabled chldren in schools we believe that disability equality training should become a compulsory part of the national curriculum. This can be addressed, for example, as part of the national curriculum subject of Citizenship education with a clear emphasis on disablity equality. If disabled and non disabled children can grow up in harmony alongside each other as much progress will be made again for disability equality as all the recent legislation.

17 We are very concerned that Ministers have signalled an intention to renege on their commitment to the principles of inclusive education. The DCSF's position that emerged following the 2001 SEN amendment to the Disability Discrimination Act has been that all children can be educated in mainstream. We urge the Government to ratify the UN Convention in full, including article 24 on education. Parental choice cannot limit disabled children's essential human rights.

 

Public Sector Duty:

18. Our support for the new public sector duty is conditional upon strand specific duties being retained, for instance taking account of people's disabilities even where it means treating a disabled person more favourably.

19 We welcome the support in the Government response to the consultation to "Framework For Fairness" for the General Duty but would like a similar reassurance for the specific duty.

20 We urge the Government to retain the current characteristics of the general duty ie. mainstreaming of equality, proactive approach, transparancy, accountability and involvement of disabled people.

21.The public duty should be extended to cover the private and voluntary sectors where disabled people remain the victims of discrimination.

22 We also believe that disability equality would be enhanced if the anticipatory duites that cover the provicion of goods, facilities and services, the exercise of a public function, the use of transport vehicles, private clubs and education were extended to cover employment and occupation, qualification bodies and provison of housing.

 

Enforcement:

23. We believe that the ability to enforce the DDA is currently limited because of the cost of bringing a case ( particularly for non-employment cases) and because of the limited powers of courts and tribunals.

24.The Government's proposals to improve enforcement including raising awareness amongst the judiciary are welcome. The additional power of employment tribunals to order changes to policies, practices and procedures are welcome but we also believe that tribunals should be given the power to order reinstatement and reingagement in discrimination cases.

25. We also call on the Government to reconsider its rejection of the recommendation of the former equality comissions, the UK Review of Anti Discrimination Legislation and the Parliamentary Scrutiny Committee of the Disability Discrimination Act 2005 for goods, facilites and services and education cases to be heard by employment tribunals.

Access to Work

26. TUDA notes that the funding for Access to Work will be doubled from 69 million to 138 million - but only by 2013, much of the notional increase will therefore be eaten up by inflation. We need a bigger budget to expand to jobseekers as well as volunteers and to restore to Government Departments.

27. A major barrier to disabled workers moving off benefit into work is the lack of Access to Work provision for jobseekers. For example, the Government's Access to Work scheme will provide taxi transport to allow a disabled person to travel to and from their workplace, but will not provide taxi transport to allow a disabled person to travel to and from the Job Centre or other employment agencies. They will pay for a reader to support a visually impaired or print impaired person within the workplace, but not to read job advertisements. They will provide a support worker to help a disabled person in their work, but not in their job-seeking. They will pay for a laptop computer with speech recognition to enable a disabled person to work, but not to apply for jobs.

28. While some alternative provision does exist through the Job Centre Plus system and contracted specialist agencies, disabled jobseekers report that this is entirely and wholly inadequate. It is also extremely unhelpful to have one system for jobseekers and another one for workers. It is essential to extend the Access to Work scheme to disabled jobseekers before any real impact can be made on the number of people claiming Incapacity Benefit.

Delays in Access to Work provision

29. Throughout the country, disabled workers also report significant delays in the provision of support via the Access to Work scheme once they enter employment. This can result in job offers being withdrawn without this being in breach of the DDA, and certainly affects employers' decisions to employ disabled workers in the future once they have experienced the delays with one employee. When support is put in place it is often inadequate, and workers may wait years before appropriate support is finally provided.

30.Access to Work provision is extended to jobseekers, this will reduce the number of workers affected by delays in providing support once a job offer has been received, as many workers will already have the support structures in place that they need. However, the system still needs to be streamlined to ensure that all disabled workers are enabled to start work with adequate and appropriate support in place within four weeks of a job offer being received. It is unrealistic to expect an increase in the number of disabled people obtaining work and coming off Incapacity Benefit until this has happened.

Inadequate information about Access to Work

31.The most relevant information about the Access to Work scheme for disabled jobseekers is the availability of ongoing grant funding for support workers and taxis to work, together with grant funding for specialist equipment such as ergonomic seating and laptop computers. Once in the possession of this knowledge, Incapacity Benefit claimants can begin to make an informed decision about whether they are able and ready to return to the workforce.

32.However, publicity for Access to Work concentrates on the provision of advice for employers and employees and does not advertise these grants at all, and so there is little awareness of the extent of the provision that is actually available. Similarly, Job Centre staff seem generally unaware of the assistance available through Access to Work, and even the specialist Disability Employment Advisers assigned to disabled jobseekers are often more or less ignorant about how Access to Work actually operates in practice. Often workers report that they would never have become unemployed in the first place if they had been aware of the Access to Work provision available to them.

33.Information about the extent of the assistance available through the Access to Work scheme needs to be made available to all disabled workers and jobseekers. All Job Centre staff need to receive training on Access to Work in order that they can advise their clients correctly. Disability Employment Advisers need access to further training and more detailed information. Only then will Incapacity Benefit claimants be in a position to make an informed decision about their suitability for work.

 

34.The remit of Access to Work should be expanded to include rights to support when needed by people with fluctuating conditions; and right to temporary staff cover, for instance for someone with a fluctuating mental health condition who needs time off. This would reduce the employer's anxiety about taking on someone who might require above-average sickness leave - just as support to install lifts removes employer anxiety about the costs of employing someone requiring major access improvements

 

Choice and control: moves to individual budgets

 

 

Social Model Definition of Disability:

 

35. The UN Convention promotes a paradigm shift in thinking about disabled

people. This involves a shift from objects of 'care' and medical concerns to subjects of rights.

 

"The Convention marks a "paradigm shift" in attitudes and approaches to persons with disabilities. It takes to a new height the movement from viewing persons with disabilities as "objects" of charity, medical treatment and social protection towards viewing persons with disabilities as "subjects" with rights, who are capable of claiming those rights and making decisions for their lives based on their free and informed consent as well as being active members of society."

http://www.un.org/disabilities/default.asp?navid=12&pid=150

 

36. Whilst not specifically defined, disability is recognised as being created by barriers in society. Accordingly, the UK law needs to move to a social model definition of disability, along the lines proposed by the DRC last year. The present definition is an insult, perpetuating prejudice and stereotypes through a law which should protect against discrimination. It creates an enormous - in some cases insurmountable, obstacle to disabled people seeking protection against discrimination. Employers will often focus on trying to prove that someone is not entitled to a reasonable adjustment rather than make simple changes to help them do their job. We have members who have suffered day's worth of cross-examination about their psychiatric impairment and paid out hundreds of pounds in medical reports - simply to establish an entitlement to fair treatment. This is not right - nor is it effective in enabling disabled people to get and keep work.

 

Monitoring:

 

37. We believe that it is important to make sure that it is essential that the EHRC and the Office for Disability Issues monitor the implementation of the Single Equality Act. The publication "Monitoring the Disability Discrimination Act" provided a good illustration of the barriers to effective implementation of the Disability Discrimination Act.

 

November 2008