DDB 18 Trades Union Congress
Joint Committee on the draft Disability
Discrimination Bill: comments from the Trades Union Congress
1. Summary
The Trades Union Congress welcomes the Disability
Discrimination bill and supports its rapid introduction. The bill
could be improved and is an opportunity to rectify other problems
with the DDA. This submission argues for it to (a) further extend
the definition of disability; (b) strengthen the creation of a
public duty; (c) further extend the coverage of the DDA; (d) state
deadlines for the transport provisions; (e) add clauses covering
reinstatement, disability-related questions, disability leave,
creation of anticipatory duty, and justification of discrimination.
2. TUC proposals on
areas covered by the bill
2.i. General approach
The bill should seek both to complete the steps
promised in the government response to the Disability Rights Task
Force (DRTF), affirmed in the 2001 manifesto, and deal with other
problems with the DDA in order to achieve full equal rights by
including additional measures. This submission proposes improvements
to areas covered by the bill, and lists further steps identified
by unions representing their disabled members. It focuses on
employment-related issues.
2.ii. Time scale
Having long pressed for implementation of the
DRTF report, the TUC urges the government to introduce the bill
in this Parliament. The provisions should come into force with
immediate effect, and a clear statement made of early deadlines
for the full access to all public transport vehicles, to be detailed
in future regulations.
2.iii. Definition of Disability.
The TUC supports the social rather than medical
model of disability, but recognises that the latter is the basis
of the DDA. Therefore we seek the widest definition of disability
and propose the following:
a) Progressive conditions. The
coverage proposed of people with named progressive conditions
should be amended to cover anyone with a progressive condition,
as urged by the DRC.
b) Mental impairments. Courts
and tribunals have taken very literally two problematic aspects
of this definition: having to be "clinically well recognised",
and to have lasted for at least twelve months. Unions have identified
stress-related illness as a serious, and rapidly increasing, problem
for many workers, but many employers have been able to avoid liability
under the DDA by arguing that employees failed the eligibility
test on one or both grounds. Purely 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.
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.
d) Anyone in receipt of a disability benefit
should be automatically included within the definition of disability.
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.iv. Public Duty
The creation of a public duty to promote equality
of opportunity and eliminate discrimination is positive. However,
the clause could be made still more effective:
a) The Race Relations (Amendment) Act (RR(A)A)
includes a duty on public authorities to promote good relations,
which is not contained within the bill. This would strengthen
the measure.
b) There is no reason why this duty should be
restricted to public authorities, and it should apply to both
public and private bodies.
c) Even if (b) is not accepted, debates around
the applicability of the RR(A) Act to a number of organisations
show that issues remain as to what constitutes a public authority.
Therefore alongside the broad definition of public function contained
within the bill, there should be a statement by the government
that it must be read as including all bodies already listed as
being covered under the RR(A) Act.
2.v. Scope and coverage
a) The proposals to extend the coverage of the
DDA to new groups of workers are welcome. The TUC supports the
further extension of the protection of the law to those working
as volunteers, as recommended by the DRTF. For
many disabled people, working as a volunteer can be a critical
first step on the road to paid employment. Such an extension would
further assist the Government's objective of getting more disabled
people into employment.
b) In common with the approach of the European
Directive, the DDA should offer protection to anyone perceived
to be disabled, whether or not they actually are disabled as defined
by the DDA. Anyone associated with a disabled person (e.g.
carers) should also be covered.
2.vi. Transport provisions.
The power to bring various means of transport
within the scope of the law by regulation is without any indication
as to timescale. The government should publish the date by which
it intends to introduce such regulations, and with the end dates
the shortest practicable. Unless all forms of public transport
are covered by the law many disabled people will continue to be
unable to access employment or to assert other civil rights and
much of the effect of the rest of the bill will be negated.
3. Proposals for
additional clauses
3.i Reinstatement
Tribunals should have, and use, the power to recommend
or order an employer found to have discriminated under the DDA
to reinstate or re-engage the disabled person. This was called
for by the DRTF and supported by the government response, but
is not included in the bill. Government statistics confirm how
difficult it is for a very large proportion of disabled people
who wish to work to obtain employment. Disabled people who have
jobs and have lost them will often find it more difficult than
it is for a non-disabled person to obtain new employment. Where
discrimination by the employer has been proven, some claimants
may prefer to be restored to their employment to receiving compensation,
but remaining unemployed.
3.ii. Disability-related questions
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 were required
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 extremely hard to
demonstrate discrimination during recruitment, and the very slowly
improving employment rate of disabled people suggests that discrimination
here may be a significant contributory factor. The government
refused to adopt this recommendation for fear that too many employers
would be caught out by inadvertently "asking the wrong question."
But this proposed change could easily be explained
to employers. The level of ignorance among employers generally
about the provisions of the DDA has been found to be widespread,
so a campaign of information about all the provisions
of the law will be necessary, in particular for small employers
whose exemption ends in October 2004.
3.iii. Disability Leave
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
report 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.
3.iv. Anticipatory duty
Parts III and IV of the DDA already create an
anticipatory duty on service providers, and the TUC supports the
DRC's submission that this should be extended to the employment
provisions. The experience of unions is that there are many systematic
barriers to disabled people finding employment, but currently
an employer's duty to make adjustments arises only with regard
to individual employees. The absence of an anticipatory duty has
particular impact in 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.
The new duty (clause 8) 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 a welcome
step, 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.
3.v. Justification
Three issues arise under this heading.
a) The TUC has always argued that the ability
of an employer to justify their act of discrimination was wrong
and was not available for other acts of discrimination. The important
changes made to the applicability of this defence by the European
Employment directive as transposed into UK law are recognised,
but await clarification. The bill creates the opportunity for
the government to do this.
b) 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 is the opportunity
to rectify this problem.
c) 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.
4. Other Changes
The TUC supports other important reforms to the
DDA proposed by the DRTF and the DRC such as coverage for school
governors and examining bodies but word limits prevent further
elaboration.
Contact:
Peter Purton
Employment & Equal Rights Department, TUC
ppurton@tuc.org.uk
020 7467 1271.
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