DDB 53 Northern TUC
Northern TUC submission to the
Joint Committee on the Draft Disability Discrimination Bill
1. Background
1.1 The Northern TUC Disability Forum
brings together trade unionists from within the TUC's Northern
Region who have an interest in raising awareness of the importance
of mainstreaming disability rights within all areas of employment
and in every aspect of public policy. The Forum provides crucial
guidance and advice on how the Northern TUC should lead by example
and set benchmarks within its own structures and activity. Members
of the Forum, drawn from trade unions and trades councils, already
play an active role within their own organisations on disability
matters. The Forum works closely with the TUC's Disability Committee.
1.2 The Northern TUC Disability Forum
welcomes the Disability Discrimination Bill and supports its quick
introduction. The Bill should rectify many of the problems contained
within the DDA. However, the Bill could be strengthened by:
- Extending the definition of disability.
- Strengthening of the definition
surrounding what is a public duty.
- Extending the coverage of the DDA.
- Creating specific deadlines in
which to implement transport provisions.
- Adding further clauses covering
reinstatement, disability-related questions, disability leave,
creation of anticipatory duty, and justification of discrimination.
2. Main comments
2.1 The Bill should complete the steps
promised by the Government in its response to the Disability Rights
Task Force (DRTF). It should address other existing problems
within the DDA in order to achieve full equal rights for disabled
people. The Northern TUC believes that a number of improvements
could be made to areas covered by the Bill, particularly in the
area of employment.
2.2 The Northern TUC believes the Government
should introduce the Bill in the current session of Parliament,
with provisions coming into force with immediate effect.
2.3 The Northern TUC supports the social
definition of disability. The widest definition should be embraced
and we echo our national TUC colleagues in proposing that:
2.3(a) The coverage proposed of people
with named progressive conditions should be amended to cover anyone
with a progressive condition, as urged by the DRC.
2.3(b) Courts and tribunals have taken
literally two problematic aspects of the definition of mental
disability: having to be "clinically well recognised",
and to have lasted for at least twelve months. Stress-related
illnesses are a serious, and rapidly increasing, problem, but
many employers avoid liability under the DDA by arguing that employees
failed the eligibility test on one or both grounds. Medical criteria
based on existing lists of conditions may be out of date when
it comes to recognising mental health problems such as those caused
by stress. Problems such as depression are often recurrent, especially
if the cause is not addressed, but may not last for a continuous
period of twelve months. This does not make them less real. The
Bill should remove the first restriction and reduce the second
to six months for depression.
2.3(c) The DDA list of "normal
day to day activities" should be revised to include the ability
to communicate with others, and to cover self-harming behaviour,
both issues relevant in mental illnesses.
2.3(d) Anyone in receipt of a disability
benefit should be automatically included within the definition
of disability.
2.3(e) The Bill fails to address the
issue of discrimination on grounds of "genetic predisposition"
to a condition, which should be covered explicitly by the law.
2.4 The creation of a public duty to
promote equality of opportunity and eliminate discrimination is
a positive development. However, the Government could make the
obligation more effective by:
2.4(a) Including a duty on public authorities
to promote good relations.
2.4(b) Applying the duty to both public
authorities and private bodies.
2.4(c) Providing further clarity as
to what constitutes a public authority.
2.5 Proposals that extend the coverage
of the DDA to new groups of workers are welcome. The Northern
TUC supports the extension of the law to cover those individuals
working as volunteers, which can help gain paid employment. Such
an extension would further assist the Government's key objective
of getting more disabled people into work.
2.6 The DDA should offer protection
to anyone perceived as disabled, whether or not they actually
are disabled as defined by the DDA. Anyone associated with a
disabled person (e.g. a carer) should also be covered.
2.7 The Government should bring all
forms of transport within the regulations, and publish a date
for its implementation.
2.8 Tribunals should have the power
to recommend or order an employer found to have discriminated
under the DDA to reinstate or re-engage the disabled person.
The Government itself has illustrated how difficult it is for
a very large proportion of disabled people who wish to work to
obtain employment. Research finds that disabled people find it
more difficult to enter the labour market than those individuals
without some form of disability.
2.9 The DRTF recommended that questions
about a job applicant's disability should only be permitted before
a job is offered to establish whether reasonable adjustments would
be needed in the recruitment process, or whether they would be
required to carry out the job itself. Otherwise, they should only
be permitted after a job had actually been offered. It is difficult
to demonstrate discrimination during recruitment, and the difficulty
in raising the employment rate of disabled people suggests that
discrimination is a significant contributory factor. The government
refused to adopt this recommendation for fear that employers would
be caught out by inadvertently "asking the wrong question."
2.10 The proposed changes should be
explained fully to all employers. The level of ignorance among
employers generally about the provisions of the DDA has been found
to be widespread. A campaign of information about all the provisions
of the law is needed, in particular for small employers whose
exemption ends in October 2004.
2.11 Disability leave should be promoted
as a reasonable adjustment by employers to enable workers who
acquire an impairment, or whose condition changes, to be allowed
time to adjust without fear of losing their employment. The idea
was advanced by the RNIB, piloted immediately prior to the DDA,
and a number of unions reported its successful adoption negotiated
with various employers. The DRTF recommended that the government
give greater emphasis to this adjustment in its published guidance.
The DDA should reflect this by including disability leave in its
list of suggested reasonable adjustments.
2.12 The DDA already contains an anticipatory
duty on service providers. The Northern TUC supports the DRC's
submission that this should be extended to the employment provisions.
There are many barriers to disabled people finding employment,
but the duty on an employer to make adjustments arises only with
regard to individual employees. The absence of an anticipatory
duty impacts on the recruitment process, and in the provision
of training, with serious effects on the ability of disabled people
to access employment in the first place, or to develop careers
having obtained employment.
2.13 The new duty on public authorities
may have the effect of an anticipatory duty when it comes to planning
for the recognition of the inclusion of disabled people in the
functions of those authorities. Clarification that the duty applied
to all public functions carried out by any body would be welcomed,
but a new clause is needed that creates a duty on all employers
to consider what adjustments are needed to their premises, work
practices (etc) in general, rather than wait for a particular
disabled person to apply for a position who requires a particular
adjustment to be made.
2.14 The TUC has argued that the ability
of an employer to justify their act of discrimination was wrong
and was not a requirement in other acts of discrimination. The
important changes made to the applicability of this form of defence
by the European Employment Directive as transposed into UK law
are recognised, but still await clarification. The Bill presents
an opportunity for the Government to provide the necessary clarity.
2.15 The right of a tribunal or court
to take into account what a "reasonable person" might
think in determining whether an employer's action in a disability
discrimination case might be justifiable has led to some perverse
conclusions. There is no such thing as an abstract "reasonable"
person: everyone has their own prejudices and stereotypes, popular
misconceptions about disabled people being particularly common.
Although a tribunal or court is usually able to distinguish between
reason and prejudice, to be able to call such a view in successful
defence of a discriminatory action defeats the purpose of the
law. The Bill presents an opportunity to rectify this problem.
2.16 Different thresholds exist for
allowing justification for discrimination or triggering the duty
to make adjustments in the provisions covering employment, goods
and services and now public functions. There should be a common,
objective standard with the lowest threshold (i.e. "serious
disadvantage") across the board.
Contact
Peter O'Brien, Regional Policy Officer,
Northern TUC
0191 232 3175; pobrien@ncl.ac.uk
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