DDB 43 Royal College of Nursing
Royal College of Nursing memorandum
to the Joint Committee on the Draft Disability Discrimination
Bill
Executive Summary
- The definition of disability should be
further extended to include all progressive diseases and the qualifying
period for a 'substantial and long term adverse effect' should
be reduced from twelve months to six months. In addition, the
terms of the Bill should be extended to allow protection from
discrimination by association and in circumstances of perceived
disability.
- Although reactive measures towards disability
discrimination are a step in the right direction, from experience
we feel that more needs to be done to change attitudes and prejudices.
- Whilst we accept the efforts made in the
draft Bill to better protect those with disability, there remain
a number of omissions, which if included would allow greater protection.
In particular there should be provision made for voluntary workers;
and tenants with a disability should be granted a clear form of
legal redress against discrimination.
- Those who prove discrimination by their
employers at an employment tribunal should be granted the power
of reinstatement.
1. Introduction
1.1 With a membership of over 360,000
registered nurses, midwives, health visitors, nursing students,
health care assistants and nurse cadets, the Royal College of
Nursing is the voice of nursing across the UK and the largest
professional union of nursing in the world. RCN members work
in a variety of hospital and community settings in the NHS and
the independent sector. The RCN promotes patient and nursing
interests on a wide range of issues by working closely with Government,
the UK parliaments and other national and European political
institutions, trade unions, professional bodies and voluntary
organisations.
1.2 The RCN is keen to ensure that our members
are provided with the greatest protection possible against all
forms of discrimination in the workplace. RCN WING (Work Injured
Nurses Group) exists to provide advice and support for members
made ill through work, or affected by disability in the workplace.
Through WING, the RCN has worked for greater equality for those
nurses with a disability. Although many of the measures in the
draft Bill are to be welcomed, there are certain areas where we
believe improvements could be made.
2. Clause 6- Discrimination in
relation to letting of premises
2.1 Clause 6 inserts new sections
into the Disability Discrimination Act making it unlawful for
landlords to discriminate against a disabled tenant by failing
to make the necessary physical alterations to the premises. We
welcome this amendment to the Disability Discrimination Act as
those with a disability often find it difficult to find appropriate
housing to suit their needs, and feel this will go some way to
addressing the problem.
2.2 However, we are concerned about
the implications of the amendment for disabled tenants seeking
legal redress against a landlord who refuses to consent to alterations.
As the draft Bill stands, tenants who experience discrimination
in this way will have to seek redress through existing landlord
and tenant legislation which can be a complex and often lengthy
procedure. We feel that it is necessary to identify in the Bill
who will take action on behalf of tenants in this situation, and
what penalties will be imposed on landlords failing to comply.
Doing so will provide a simple method of legal redress and act
as a deterrent against discrimination.
The RCN urges the Government to
specify what form of legal redress will be available for disabled
tenants experiencing discrimination from their landlord, and identify
who will have responsibility for taking up their case.
3. Clause 8- Duties of public authorities
3.1 Clause 8 outlines the duties
of public authorities in tackling disability discrimination.
We welcome the intention behind clause 8 which seeks to align
the Disability Discrimination Act with the Race Relations Act
by ensuring that public authorities actively promote equality.
However, although the measures in clause 8 are a step in the
right direction, it is our experience that attitudes towards disability
are rarely changed by reactive measures alone. Those working
in the health service often feel they have a positive attitude
towards those with disability; however in reality they tend to
view disability as an affliction or illness. As a result this
can often lead to discrimination, particularly towards other staff
with a disability.
3.2 We feel that more needs to be
done to foster a culture of understanding and respect in the workplace
towards those with any form of disability, and would suggest the
Government look at introducing more prescriptive powers.
The RCN feels that the measures in
the Bill relating to the duty of public authorities to combat
discrimination would be strengthened by extending clause 8 beyond
reactive powers alone.
3.3 The RCN is concerned about the
lack of an appropriate enforcement mechanism to impose the duty
on public authorities under the terms of clause 8. The equivalent
provision in the Race Relations Act 1976 has experienced problems
of enforcement and efforts should be made to eliminate similar
obstacles with this legislation.
3.4 In our experience there remains
widespread ignorance among health care workers about the impact
of the statutory duty in the Race Relations Act on their own practice
and their employing organisation's race equality scheme. As a
result, enforcement of the Act has been hampered. Taking steps
to avoid this in the Disability Discrimination Bill would enable
the Bill's measures to be implemented more effectively.
The RCN urges the government to examine
the problems encountered in the enforcement of section 71 of the
Race Relations Act and asks them to take steps to ensure similar
difficulties are not experienced with this Bill.
3.5 We also feel that it would be helpful
to provide a list of public authorities covered under clause 8
to ensure there can be no confusion over who is liable under the
terms of the Bill. We would envisage a list of specified authorities
similar to that provided in Schedule 1A of the Race Relations
(Amendment) Act 2000.
The RCN seeks greater clarification
on the public authorities covered under the terms of the Bill
by including a list of those who will be subject to the general
duty under clause 8.
4. Clause 12- Meaning of 'disability'
4.1 The expanded definition of disability
to include cancer, multiple sclerosis and HIV is to be welcomed.
In the past some of our members have felt vulnerable in the workplace
as a result of their HIV diagnosis. The greater protection afforded
to them through this clause will provide the necessary security
and protection against discrimination.
4.2 However we feel that the definition
could be extended yet further to include all progressive diseases
and afford protection for those suffering from conditions such
as motor neurone disease and Huntingdon's chorea. Such conditions
often have a stigma attached with inaccurate assumptions made
about an individual's ability to carry out their work. Widening
the scope of the definition to include all progressive diseases
would help to eliminate this problem and ensure fairer treatment.
The RCN believes the definition of
disability should be widened to include all progressive diseases.
4.3 Although the draft Bill
makes reference to mental health under the definition of disability,
we strongly feel that clarification should be provided on what
constitutes a 'mental impairment'. Many of our members have experienced
psychological illness and suffered unfair treatment as a result,
but have been unable to establish themselves as disabled under
the terms of the 1995 Act. As outlined by the Disability Rights
Commission, applicants have lost in 16% of discrimination cases
as a direct result of not having met the statutory definition
of disability. It is therefore clear that a much more specific
definition of mental health is required and would afford greater
protection for those suffering from mental illness.
4.4 The RCN supports MIND in
their call for amendments to the draft Bill to provide better
cover for mental illness, in particular for those suffering from
depression for less than twelve months, schizophrenia, self harm,
and eating disorders.
4.5 Furthermore, the requirement
that the disability must have a "substantial and long term
adverse effect" has been problematic as it requires the impairment's
effects to have lasted twelve months or more. This has caused
problems for nurses who have experienced clinical depression for
a limited period with no chance of recurrence, and have been treated
unfairly as a result. Reducing the qualifying period from twelve
months to six months would allow protection for those suffering
from conditions such as depression and clinical anxiety.
The RCN is calling for the definition
of disability to be amended to afford wider protection for those
suffering from mental illness. In particular the qualifying period
for a 'substantial and long term adverse effect' should be reduced
from twelve months to six months.
4.6 Under the 1995 Disability Discrimination
Act, those who are perceived to have a disability, or are associated
with those suffering from a disability are not offered protection
from discrimination. Given the stigma often attached to conditions
such as HIV, there is a potential problem for those who are perceived
to have the infection, perhaps because of a previous test for
HIV, albeit with a negative result. Similarly, those caring for
the disabled can suffer discrimination as a result of their association
with a particular condition. Often the effects of discrimination
in these circumstances can be just as distressing as for those
who suffer from a disability, and so they should be afforded similar
protection.
The RCN believes that the Bill should
be extended to offer protection from discrimination by association
and in circumstances of perceived disability.
5. Pre-employment questionnaires
5.1 Pre-employment questionnaires are an important
part of the recruitment process, and many of the questions asked
often relate to personal health and the number of sick days taken.
Whilst the RCN recognises the need to ask such questions in certain
circumstances, we are concerned that such information can result
in discrimination in the selection procedure. Research carried
out by the Department for Work and Pensions identified recruitment
as the most common area where discrimination occurs, and it is
often the case that the fear of discrimination can deter a disabled
person from applying for a position. Given the prevalence of
discrimination in the recruitment process, we feel that disability
related questions should only be asked by professionally qualified
occupational health staff who are in a position to properly evaluate
the information.
The RCN believes the use of pre-employment
disability related enquiries should be limited, and where they
are necessary they should be the responsibility of professionally
qualified occupational health staff.
6. Voluntary workers
6.1 The draft Bill does not include
measures to prevent discrimination against voluntary workers,
and we believe this is a significant omission that needs to be
addressed. Voluntary work not only provides an important contribution
to the community, but in the experience of RCN WING it also plays
an important role in the rehabilitation of workers affected by
disability.
6.2 The Disability Rights Taskforce
has recognised the importance of volunteering to disabled people.
In order to ensure their continued involvement in voluntary work,
we believe that disabled voluntary workers should be protected
from discrimination under the terms of the Bill.
The RCN believes the draft Disability
Discrimination Bill should be extended to allow protection for
voluntary workers.
7. Employment tribunals
7.1 Employees who are discriminated against
under the terms of part 2 of the Disability Discrimination Act
1995 are not being offered the power of reinstatement under the
terms of the draft Bill. In practice this will mean that those
who successfully prove discrimination by their employer will not
be able to return to their job. This is a significant shortcoming
of the draft Bill which undermines its purpose to afford greater
protection to those with a disability.
The RCN believes that the draft Bill
should include provisions for reinstatement for employees who
successfully prove that their employer has discriminated against
them.
Royal College of Nursing
February 2004
"Disability Equality: Making it Happen".
Disability Rights Commission, April 2003
"Disabled for Life; attitudes towards and experiences
of disability in Britain", Department for Work and Pensions,
2002
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