Memorandum submitted by Unite
This response is
submitted by Unite, the union. Unite is
The following evidence is complementary to the attached key points from our responses to the Women and Work Commission and the Discrimination Law Review consultations.
1. Equality in Employment
1.a How effective has DWP been in achieving equality in employment, how would it have to change to achieve greater equality in employment?
1.a.1) We recognise there has been positive work done by DWP regarding women, black, Asian and ethnic minority workers, disabled workers, carers and pensioners. However, we would still strongly stress the importance of action to implement the Women and Work commissions report recommendations relevant to DWP including monitoring information. We believe to be effective in achieving equality in employment, in addition to addressing more effectively specific equality areas there needs to be a more consistent inclusion of cross-cutting discrimination in DWP. For example, in requiring data on a cross section of equality areas there were difficulties in identifying supported employment participants by gender and/or ethnic origin in DWP information. However a positive example of addressing inequality is from our experience of DEAC. This important advisory committee took action to ensure disabled ethnic minority people were included in the work and composition of the committee in a positive and proactive way.
1.a.2) Specifically on disabled workers, since the introduction of the DDA we have witnessed some improvement in the recruitment of disabled people. This does not mean that currently disabled people are getting a fair deal especially in the area of retention and when seeking employment after being out of work, as it is clear from recent surveys that disabled people are still more likely to be unemployed and be in low wage jobs. This is due to the fact that employers continue to discriminate particularly against those with mental health problems.
To address this issue the government needs to make positive changes to help disabled people back to work and stay at work. For this reason, we believe that proposals such as the Employment and Support Allowance will not be a move towards better employment. This will only put more stress on disabled workers and can worsen their conditions as a result. We are extremely concerned about forcing workers to take unsuitable jobs or face poverty. These proposals will only affect the poorest people in society especially when there is a lack of adequate provision of appropriate support for the increasing number of disabled people who will be required to take up employment.
We believe that the government needs to seriously look at these proposals again so that its intention that "Work is the best route out of poverty" will become reality.
1.a.3) We welcome the positive support for lone parents which assists them to support their families and to work. However, we are very concerned that the approach should recognise that lone parents, the vast majority of whom are women, provide family support including at times of extreme difficulty and hardship eg after the death of the other parent or family breakdown, or in relation to the circumstances of the birth of the child. The government's positive approach has succeeded in achieving a major increase in the employment of lone parents, without the threat of coercion. We do not believe equality is enhanced through the current proposals that will undermine this positive approach.
1.a.4) Additionally, our experience of representing lone parents and learning from positive attitudes in the New Deal for disabled and young workers, leads us to recommend that including an incentive to employers for employing lone parents could further help with recruitment and retention at work.
1.b How can the Equality Bill open up opportunities in employment, particularly for disabled people, carers and pensioners?
1.b.1) The Equality Bill - Opening up opportunities in employment
The Equality Bill has put equality on the agenda and it can ensure that employers promote equality and zero tolerance on discrimination on all grounds. The proposal to strengthen positive action and the inclusion of employment opportunities for black, Asian and ethnic minority and disabled workers in the transparency requirements can tackle under representation. Also the extension of Equality Duty to cover age, sexual orientation, religion or belief and gender reassignment, an end to age and disability discrimination in the provision of goods, facilities and services and the extension of protection from third party harassment to all grounds of equality will be a move to have employers and service providers to equality proof their policies and practices.
1.b.2) The Equality Bill - The Role of Union Equality Representatives in opening up opportunities in employment
An important measure to tackle inequality in the workplace is the establishment of statutory rights for union equality representatives. They play a vital role in ensuring better working conditions for all workers. First and foremost, our experience shows that the role of union equality representative has been particularly important in supporting the implementation of discrimination law, both in terms of supporting individual workers to identify their needs appropriately, and in raising awareness with the employer and other workers on the issue in general. As union equality representatives do not currently have sufficient rights to carry out their role, we would call for this to be addressed, ecognizing its importance to support equality and prevent discrimination, as the following examples show :
· Union Equality Reps : Supporting retention of disabled workers in work
At English China Clay, now called Imerys a work reorganisation was introduced. This action disproportionately affected disabled workers, as the new jobs were later identified as unsuitable for a number of disabled workers because of their impairment and they were selected for redundancy. The union equality representative, a disabled worker himself ensured that the abilities of the disabled workers were recognised and asked for the examination of reasonable adjustments. The involvement of the union equality reprentative ensured the disabled workers had a fair chance to stay in work and to avoid unfair and potentially unlawful selection for redundancy on ground of disability.
Also in another case at Imerys a disabled worker was threatened with redundancy where he was marked down on potential after applying the points system. As part of our ongoing negotiations to retain the disabled worker, the union equality representative has advised the employer to get specialist advice on Access to work.
· Union Equality Reps supporting workers with family responsibilities and on flexible working
In one manufacturing workplace, for example, a white male union equality representative who has agreed time off from the employer has supported a number of men workers who have non-resident parental responsibilities following divorce. The divorce settlement has led to the time they spend with their children being restricted to specific hours and days which do not readily fit with their shift pattern, and the support provided by the union equality rep has been very important in assisting effective solution to be found with the employer.
In the civil aviation industry, for example, a woman union equality representative of Asian origin who does not receive agreed time off from the employer in this role, has raised awareness of flexible working amongst union members and representatives and done her best to support individuals in her own time, and through using holiday time. However, she feels the lack of support from the employer for this role has meant missed opportunities to resolve difficult issues, and generally to support workers balancing their home and family responsibilities
However, in those workplaces where the employer recognises the role, and we strongly recommend that the role of union equality representatives be included as part of the Equality Act.
1.b.3) The Equality Bill - Opening up opportunities for disabled people
In our experience one of the main issues for disabled workers is retention at work. This is mainly due to employers' refusal, unwillingness or ignorance about making reasonable adjustments. We also find that employers dismiss disabled workers before ensuring that sickness absence policies are used to help them return to work after a long absence or consider alternative options such as redeployment first. The Equality Bill can change the employers' focus from discipline to rehabilitation.
We find workplace health inequalities a major problem which the bill can address. It should ensure that employers carry out an equality impact assessment, review their sickness policies and introduce paid disability leave including for those conditions with fluctuating circumstances. Also, all workplaces should carry out a Disability Audit, monitor the recruitment, retention, promotion and pay of disabled workers. This should include those who develop an impairment or long-term health condition or those with learning disabilities and mental health problems.
Finally, employers need to be made aware that flexible working can be part of the reasonable adjustments and should be positively considered. This will provide the chance for disabled workers and carers to support their families encouraging many men and women to stay in or return to work.
In our experience in workplaces disabled workers themselves are consulted on work practices and arrangements there is more productivity and industrial relations. Therefore, there should be a great emphasis on consultation in the Bill after all it is the disabled person who knows best.
1.b.4) The Equality Bill - Opening up opportunities for carers
Carers can and do face discrimination which is not adequately provided for at present eg the father of a child with epilepsy who occasionally required a start time delay of 15 minutes was granted emergency leave, but deducted 15 minutes' pay. We are, however, concerned at the lack of importance given to the need for anti-discrimination protection for those with caring responsibilities. From our experience of representing members, many workers with caring responsibilities who are predominantly women have to use indirect sex discrimination to seek remedy. This option is an inadequate means of recognising the specific discrimination and under-valuing of caring responsibilities undertaken by both women and men. Increasingly, older as well as younger people are becoming carers the Bill can help by providing protection against discrimination on grounds of age by association.
Many carers lose out in retirement due to broken employment service. The Bill can extend the rights to all carers ensuring equal opportunities for those with caring responsibilities. This should include flexible working rights for all, paid carers leave and health support for carers, increased carers' allowance, backdating State Second Pension, protecting pensions of carers with broken service.
1.b.5) The Equality Bill - Opening up opportunities for pensioners
As a trade union we have consistently argued the importance of addressing discrimination as part of the solution to the poverty faced in retirement by many women, disabled workers, and black, Asian and ethnic minority workers. They are more likely to have worked in jobs without access to an occupational pension, and are less likely to qualify for a full state pension as they have had less opportunity to build up their National Insurance record. In particular, the importance of equal pay being effectively addressed in the Equality Bill is essential as part of the measures to tackle the poverty amongst women in retirement. We have welcomed some of the pensions and equality measures introduced by the DWP, including in relation to women and carers, same sex partners and others, but continue to remain concerned that :
- there is no immediate increase in the basic state pension
- older people are forced to work beyond retirement to top up their pensions or are put under pressure by employers to retire early
- means tested benefits stops older people seeking employment
1.c How should the Equality Bill respond to the decision in the Malcolm case in respect of disability rights in employment?
We believe that it is very important to address the decision in the Malcolm case, and are preparing a fuller response on this issue, which we would be pleased to send you shortly. We are concerned that the implication of the Malcolm case could lead to the loss of rights for disabled workers who are discriminated against only for the reason of their disability. We believe that indirect disability discrimination should be explicitly introduced in the Bill. The requirement to take a reasonable action for an individual is complementary to the requirement not to indirectly discriminate against disabled people in general. Recognition of indirect discrimination allows for structural barriers to be addressed much more effectively. To address discrimination it is therefore necessary that indirect discrimination should be in addition and not instead of disability related discrimination provisions. In our experience of taking disability discrimination cases we found that comparing the treatment of disabled workers with non-disabled workers is not as straight forward as the case of men and women or black and white people. Therefore, reinstating the protection against disability related discrimination to pre-Malcolm which does not require a comparator would be the positive way forward.
1.d How should the Government improve protection of carers in equality legislation, following the decision in the Coleman case?
Carers play an important role in our society but do not receive the recognition they deserve, it is time that we have equal opportunities for those with caring responsibilities. We believe that the decision in the Coleman case has provided a great opportunity for government to address and put right the issues faced by all carers. It is important to refer to the Disability Rights Task Force report, which recommended that protection against discrimination needs to include those people who may be discriminated against because they are "perceived" to be disabled, and those "associated" with a disabled person e.g. as a partner or carer, and who face discrimination as a result of that association.
To integrate the Coleman case ruling into the Equality Bill,
we believe that discrimination as a result of association should be prohibited
on all grounds. Currently, those people who care for friends or neighbours or some
relatives do not enjoy the same rights. The legal definition can exclude
vulnerable groups, including migrant workers who may have no relatives in the
2. Equality in Goods, Facilities and Services
We agree with the
2.2) Many disabled workers are refused a private pension on ground of their disability. We also believe that no pension providers should be able to justify discrimination. Pension providers should operate within a level playing-field, but that the field should be levelled up - i.e. they should have to make reasonable adjustments. In addition, there should be a guarantee to equal access to occupational pension schemes where disabled people join at the start of their employment as suggested by the Disability Rights Taskforce.
3. 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? 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?
3.1) We recognise that the introduction of a Single Equality Duty in the Equality Bill provides the opportunity to extend this important positive measure beyond gender, race and disability to sexual orientation and age, as well as to strengthen the existing duties. We would be concerned, however, if the Single Equality Duty does not recognise the requirements of distinct areas of equality and the differences between them. For example, measures to encourage women with young children back into the labour market will be different from measures to support retention of disabled workers in work, and again measures to tackle disproportionate unemployment faced by young black men in some areas. It is important not to lose the focus necessary for addressing issues specific to each area of equality through over-general commitments rather than specific measures to address particular barriers.
3.2) The Duty should also include issues of multiple discrimination and the inter-relationship between areas of equality - ensuring for example, discrimination against black, Asian and ethnic minority women is covered.
3.3) The role of trade unions in supporting the implementation of the Single Equality Duty, which is currently included in the gender equality duty needs to be part of the new Duty for all areas of equality. Trade union shop stewards, safety reps, union learning reps and union equality representatives can all have experience of tackling discrimination and promoting equality and involvement of under-represented sections of the workforce, which is essential if the duty is to be effective, is to make a difference, and is to win support across all in the workplace.
3.4) We strongly support the call to strengthen the duty for implementation, including monitoring action holding the authority to account, and requiring a written equality scheme and the measurement of outcomes through Equality Impact Assessments for example, as the way forward. Most importantly, as our experience shows, without real enforcement, the single duty can amount to yet another "paper exercise". Therefore, in addition to ensuring trade unions are included (see above) the EHRC should be provided with sufficient resources to ensure effective enforcement.
3.5) We believe that procurement is key to ensuring that poor practice in the private sector cannot be used to undermine good practice introduced in the public sector in response to the Equality Duty, and that equality should be taken into account in all public functions. The importance of addressing the responsibilities in the private sector is clearly stated in the government's pamphlet "Buy and make a difference". This includes the opportunity to ensure private and voluntary sector organisations adhere to and promote equality when they are carrying out public functions, as well as to award a contract specifically to eg a women's project or black business in a way that is not in conflict with the requirements of EU law.
4. Private Sector commitment and support, guidance, advice and information for employers
4.a Is an Equality Duty on the Private Sector workable?
We have been consistently calling for the duty on the public sector to be
extended to the private sector. The government should recognise the importance
of using the Equality Bill as an opportunity to extend to the private sector
the requirement to promote equality and prevent discrimination. We have a great
deal of experience promoting equality in the private sector with employers of a
range of sizes, including eg British Airways, Ford Motor Company, J Sainsbury,
BAA, London Buses, English Church Housing Group, Ineos,
4.a.2) Additionally, our experience of representing members who are employed through private sector agencies leads us to make a very strong case for them to be specifically included in the Equality Bill. This is particularly important as a potential source of discrimination faced by disabled workers. We have examples of cases where disabled workers for an agency who raised issues or requested reasonable adjustments were never asked back. We also have the example of a workplace where the use of the workers' sickness record was in effect disability discrimination on grounds of mental health - having suffered a serious mental health problem following the death of her father, the worker had been undergoing therapy for a considerable period, but was now ready for work, which the agency procedures would not allow.
4.a.3) All employers are required to take
action on health and safety, and in our experience of representing workers
facing discrimination, we have seen a strong link between health & safety
and disability and our work in this area has been very successful eg. producing
guides, factsheets, using and publicising the joint
4.a.4) We believe Disability Audits carried out regularly are key to identifying discrimination in recruitment, retention, promotion and other work practices, and our experience of carrying out over 100 disability audits across workplaces, mainly in the private sector, revealed problems that could then be addressed. Therefore, it is important to place a duty on private sector as well as public sector employers to carry out a disability audit.
4.b How can the Access to Work scheme better enable people to obtain, stay and progress in work? How can Access to Work better support people with mental illness and fluctuating illnesses?
4.b.1) In our experience, Access to Work is one of the most effective schemes. We strongly support it, and would support its much wider promotion and awareness-raising of the positive role it can play. This measure could make an enormous difference.
4.b.2) We have expressed our serious concern at the removal of Access to Work from government departments, at the same time as the public sector duty on disability was introduced. At the very time it was needed most, we were concerned that the needs of disabled workers were potentially being pitted against other budgeted items, in a general climate of pressure on public spending. We would strongly oppose any extension of this approach, and very close examination of the impact of decisions to date, which we would call to be reversed.
4.b.3) In terms of the specific questions on disabled people and work, we support government schemes such as Pathways to Work and Access to Work. We also believe that a continuing growth in the budget for Access to Work is essential to helping disabled people get and stay in work, including support for transport to work. This needs to be seen as an investment, and complementary to the anti-discrimination and positive duty included in the Equality Bill. In our experience, many Companies are unaware or plead ignorance about Access to Work, leading to dismissals of disabled workers that we believe could be avoided - not just because they are potentially unlawful, but because they mean a loss of the talents and experience of the disabled worker, because of the impact of unemployment on disabled people and their families, and the requirement to move from earning a living to claiming benefits. The effectiveness of Employment Retention Assessments to help disabled people stay in work also needs to be looked at, both as part of the Independent Living Strategy, and in the light of the requirement to carry out Reasonable Adjustments.
4.b.4) Specifically, in terms of support for workers with mental health problems, in our experience the difficulty most workers face is actually declaring their mental health disability and that in many cases it is work related. These conditions have either started or worsened due to bullying, harassment and discrimination or other poor working practices. We have also found that black, Asian and ethnic minority workers face double discrimination due to cultural misunderstandings, stereotyping and discrimination. This can lead to unemployment, poverty stress and mental health issues.
Some of our
members who are on sick leave due to work related stress are punished by
performance procedures instead of employers finding ways of eliminating the
causes. To move forward, we for example have asked managers at
4.b.5) In terms of making Access to Work fully accessible to disabled people with mental health problems, we believe it is vital that the additional barriers to accessing this support are better recognised and addressed, not least the fact that for a number of mentally disabled people, their condition can prevent them recognising that they have a disability. For example, a union equality representative who was supporting a member in this situation, found that the current procedure, where the employer or the disabled person themselves have to apply to Job Centre Plus for Access to Work, prevented the union equality representative from gaining playing a more helpful role in gaining the necessary support.
We therefore want to see recognition for workers with mental health problems whether, it is a medical condition they are born with or is developed due to working conditions, and positive ways to support their retention and recruitment at work.
5. Single Equality Act. How does Disability fit in a single Equality Act? Should the 'social model', or 'medical model' apply for disability? What is the role of the Equality and Human Rights Commission within the single Equality Act?
5.1) In the establishment of the Single Equality Act, we remain very concerned to ensure that the specific focus on disability is included, recognised and effectively addressed. This is the approach needed for all the specific areas of equality covered currently by separate pieces of legislation. There is a serious danger that the Single Equality Act provides too much of a general overview, rather than identifying the specific forms of discrimination or positive action. Our experience of the early days of the Equality & Human Rights Commission demonstrates the importance of keeping to the forefront the distinctions between different areas of equality and the need to treat them accordingly, rather than addressing "equality" as a general issue. For example, in terms of disability, access, reasonable adjustment and disability-related discrimination are important distinctions, and it is important that the Act addresses the needs of each area to ensure equality for all.
5.2) We agree with advancing the "social model" of disability and not the "medical model". Disabled people's right to independent living is underpinned by the social model which means identifying the barriers to participation, addressing them and changing the environment in order to provide disability access. It is clearly outlined in the Guidance for Public Authorities on Disability Equality Duty that "the Duty reflects the social model of disability. This takes the approach that what stops or hinders a disabled person doing something are barriers that society has put in place or chosen to ignore. It is society that disables a person not their impairment." It is therefore necessary that the social model is adopted in the Single Equality Act to empower disabled people and include everyone in the activities of society.
5.3) We support the role of the Equality and Human Rights Commission as set out in the law in terms of advising, promoting, monitoring and enforcing anti-discrimination laws and the promotion of equality in key specific areas. In our experience equality legislation can be effective in setting minimum standards, on which employers working with trade unions can then build through identifying inequalities, addressing discrimination and taking action. The EHRC can greatly assist this process.
5.4) It is also absolutely vital that every area of
equalities is adequately resourced in the Equality and Human Rights Commission.
Nothing could be more
detrimental to the equalities agenda than competition for resources and for a
campaigning profile between different areas. Other roles: commissioning new
research in all areas, raising awareness of discrimination on all grounds,
representing cases, carrying out Inquiries, and as a source of information and
guidance are also important. At this stage of its development, we would be
concerned to stress the need for the EHRC to ensure the core issues which were
very effectively addressed in the
5.5) We welcome the Office for Disability Issues work on setting the overall disability strategy, raising awareness and improving information provision as well as moving forward the agenda on disability rights. They have an important ongoing role working with disabled people, government departments and disability organisations to provide better services and rights for disabled people. They can continue their role of involving disabled people, providing information and evidence to government, promoting and communicating effective government policy and legislation as specialist in the field of disability within the Single Equality Act.
The Single Equality Act provides a major opportunity to make our equality law fairer and more effective. This is an opportunity we must seize, or generations into the future will continue to pay the price of discrimination that occurs today. In summary, we therefore call for :
EQUALITY DUTY FOR
1. ESTABLISHMENT OF UNION EQUALITY
REPRESENTATIVES : with statutory rights to paid
time off, information and training. The limited impact of the equalities laws
on workplace practices since the 1970s, when compared with health and safety
legislation from the same time, has been in major part due to the role of union
health and safety reps and committees. The
Single Equality Act provides a major opportunity to put this right.
2. RECOGNITION OF COLLECTIVE
3. ENSURING EQUAL OPPORTUNITIES FOR THOSE
WITH CARING RESPONSIBILITIES : indirect
sex discrimination is an inadequate means of recognising the specific
discrimination and under-valuing of caring responsibilities undertaken by both
women and men, increasingly at older as well as younger ages. The Single Equality Act provides a major
opportunity to put this right.
4. RECOGNITION OF MULTIPLE DISCRIMINATION
: existing anti-discrimination law
requires separate legal cases on grounds of eg gender and race, without
recognising the inter-relationship between them. This lessens the ability to
tackle clear discrimination and inequality effectively and fairly. The Single Equality Act provides a major
opportunity to put this right.
5. THE LEGAL FRAMEWORK TO INCLUDE THE CLEAR VISION OF EQUALITY eg from the terms of reference of the Commission for Equality & Human Rights : the principles and objectives underpinning our equality legislation need to be set out to ensure it is implemented as intended. A Purpose Clause is central to this. The Single Equality Act provides a major opportunity to put this right.
UNITE strongly supports
the response of the
What more could be done to support SMEs to achieve greater equality for disabled people?