DDB 76 UNISON
UNISON's submission
to the Joint Committee on the Draft Disability Discrimination
Bill
1. Introduction
UNISON policy has long
been that the Disability Discrimination Act is fundamentally flawed
and hundreds of thousands of Disabled people could fall outside
its protective measures. Our experience shows the difficulty
Disabled people encounter in challenging discriminatory acts as
well as the difficulty employers have in understanding the extent
to which they have duties under the Law. Our workplace representatives
have had successful negotiations in securing reasonable adjustments,
but it should be noted that their reports express concerns regarding
the complicated hurdles they have to take our Disabled members
through in addressing disability discrimination.
We welcome the Government's
initiative to extend provisions in a number of areas as set out
in the Draft Disability Discrimination Bill, however, we are concerned
that much more legislative reform will be required in order that
Disabled people can be comprehensively protected from discriminatory
actions.
We are concerned with
all aspects of discrimination against Disabled people and although
this submission largely focuses upon employment issues; we would
be pleased to present further submissions to the Joint Committee
in relation to service provision and trade organisation duties
in due course.
2. The Definition of
a Disabled person
Initiatives to extend
the definition of a Disabled person and subsequent protection
are of course welcome. We support the Disability Rights Commission
recommendation that all those in receipt of disability related
benefits should be considered eligible for protection from discrimination.
However, we have concerns that a piecemeal approach rather that
a complete overhaul of the definition itself may result in a number
of problems:
- A significant number
of Disabled people will continue to fall outside legal protection
- The changes could
lead to a new apartheid of Disabled people; creating a hierarchy
of exclusion with some Disabled people enjoying some rights whilst
others remain exposed to variable degrees of exclusion, poverty
and discrimination
- There appears to be
no initiative to provide support to those people diagnosed with
particular conditions such as HIV, cancer and Multiple Sclerosis
during the process of coping with the new identification as a
Disabled person, Provision should be made within the public sector
for advisors support and guide newly disabled people about the
extent to which they are protected under
- Potentially increased
confusion by all parties who have duties under the Law about which
Disabled people they should take into consideration in anti discrimination
measures, and
- Regression to similarities
with the previous "Quota Scheme", where in some cases,
having an identifiable impairment can be a gateway to limited
protections for a minority, yet for others, multitudes of barriers
which prevent equality.
We continue to believe
that the definition should be based on the Social Model of Disability
and that in common with other forms of anti discrimination legislation,
the alleged act of discrimination should clarify a person's status
as a Disabled or non-disabled person.
3. Extension of Occupational
Provision
We welcome the abolition
of exemptions this year in the prison, police and fire services.
However, there is growing concern amongst our members who work
in related fields that their employers have no intention to increase
resources available to accommodate new reasonable adjustment requirements,
but that they in fact will dilute existing resources in order
to meet new duties.
The extension of occupations
to be covered by the DDA will inevitably attract new demand on
existing government resources; we suggest that a review of services
to Disabled people is undertaken to respond to the increase in
potential users. We are aware of a number of our members who
have waited a considerable period of time for adjustments to be
made; we would not want this situation to be exacerbated and our
members jobs be put at further risk.
As well as additional
financial and practical support, new guidance will be required
in order that all Disabled workers in these fields have access
to employer and government sponsored schemes and in order that
employers can get to grips with their additional duties without
detriment to Disabled workers already covered by the Act.
Volunteering and gaining
work experience can be a valuable tool in the transition from
unemployment and poverty to economic independence and social integration.
We hope the Joint Committee will give consideration to extending
provision to volunteers and make appropriate increased financial
and practical resources to support Disabled volunteers in the
search for work.
4. New Public Sector
duties
As the largest union organising
across public services, we wholeheartedly welcome the proposal
in the Draft Bill to introduce a public sector duty to promote
equality of opportunity, eliminate unlawful discrimination and
harassment. We believe this should open up greater employment
opportunities and result in more equitable service delivery, but
urge the Joint Committee to consider broadening these duties to
promote good relations, similar to provision in the Race Relations
(Amendment) Act.
It is disappointing that
similar duties are not being constructed for the private sector.
Evidence of privatisation has shown that Disabled people fare
less well and experience a disproportionately higher incidence
of disability discrimination in the private sector.
A small number of our
branches organising in the private sector have reported locally
agreed non-discrimination policies that could have a significant
bearing on the future rights of Disabled people. These have been
agreed on the basis that it is in the private employer's interest
to assume a moral responsibility towards the needs of the local
community and its workforce in respect of the physical built environment
and other features related to Disabled people's access needs.
5. Transport
Inaccessible transport
continues to present one of the greatest barriers to Disabled
people's rights in employment and society generally. We welcome
initiatives to extend provision to vehicles but would add that
attention needs to be given to address the inadequate provisions
that result in inconsistencies geographically and by service providers.
Our members are calling
for the introduction of a single travel card that offers consistent
concessions regardless of postcode or mode of transportation and
one that imposes no restrictions on travel periods. Concessions
that are only available outside rush hour result in fewer employment
opportunities in full time work and can result in reduced personal
income and independence.
6. Housing
It is regrettable that
housing has not been incorporated into the proposed Bill. Housing
is a significant factor when considering Disabled people's employment
prospects. We are aware of a number of our Disabled members who
have had to forfeit career opportunities due to inadequate levels
of accessible accommodation in the public and private sectors.
We hope the Joint Committee will take housing into consideration
when it reviews proposed legislation.
7. Public Bodies
We welcome the proposal
to extend protections to office holders such as elected councillors
and those serving on the board of NHS Trusts as this should form
a significant shift in public perceptions about Disabled people
as valid contributors to local social policy and health matters.
We are disappointed that
similar provisions are not included in respect of other public
positions especially in school governing bodies. Some progress
has been made with the introduction of SENDA and we believe that
it is an obvious anomaly to not have made provision in order that
Disabled people can be involved in shaping education provision
for Disabled people, we urge the Joint Committee to consider this.
8. Employment
We are concerned that
Disabled people continue to experience extraordinarily high levels
of long term unemployment. In particular, they may face disadvantage
within the recruitment and selection process. The Draft Bill
makes no provision for Tribunals to order reinstatement in cases
where claims have been upheld; the Joint Committee is urged to
give consideration to strengthening Disabled people's rights at
work by creating opportunities for Tribunals to order employers
to reinstate or re-engage Disabled workers.
Monitoring workers disability
status remains a controversial issue as it can be a weapon to
be used effectively to discriminate against Disabled people or
as a tool to help those with duties under the Law to be confident
that they have taken adequate measures to address discriminatory
policies and practices.
We urge the Joint Committee
to give specific consideration to the issue of monitoring as this
is a vital component in the fight for Disabled people's rights.
Our view is that monitoring should be for the purpose of making
reasonable adjustments in all aspects of the recruitment, training
and selection of staff and that it should not be based on people's
impairments but should reflect the access requirements of Disabled
people. We suggest that in order for employers, service providers
and trade organisations to be confident that their systems and
procedures are discrimination free, the Joint Committee should
introduce a new clause to address monitoring issues.
Employers are currently
guided to make provision for some work related absence such as
time off for rehabilitation or some forms of treatment. Absence
from the workplace as a result of disability can have a detrimental
effect on Disabled people's employment opportunities, career progression
and economic independence. Sickness absence procedures are often
used as a reason to take punitive measures even though Disabled
people may not actually be sick. Bonus payment schemes often
fail to include adjustments where factors such as attendance and
output measures are critical to remuneration.
We strongly urge the Joint
Committee to give consideration to introducing a new clause to
make provision for Disability Leave to take account of absences
that are strictly related to individual need. We suggest this
should be considered in the context of work life balance and
be extended to include:
- Periods of absence
whilst adjustments are being carried out to the workplace built
environment, or the services required in order for the Disabled
person to carry out their duties
- When mobility difficulties
are caused by inclement weather
- Necessary appointments
in relation to benefit applications, and
- Provision for necessary
adaptations to the Disabled person's home, especially in the case
of geographic relocation.
Anticipatory duties should
be extended to employers. We believe that employers may often
fall foul of their duties because they have not been required
to give advance consideration to the barriers that exist within
the workplace or its associated policies or procedures. The disadvantages
to this are three fold; employers are wasting valuable resources
in addressing disability discrimination on an individual basis,
trade union representatives are needlessly negotiating and renegotiating
adjustments and, Disabled people have become isolated, vulnerable
individuals in their attempts to challenge systemic discrimination
at work.
The introduction of anticipatory
duties could generate a collaborative model of partnership working
to the common goal of eliminating disability discrimination by
involving Disabled people, their trade unions and employers.
New anticipatory duties
will need some safeguards if they are to enjoy success. Employers,
trade union representatives and Disabled people themselves may
be victims of a growing number of exploitative business concerns
that are designed for greedy profit rather than assisting employers
to meet their duties or to support Disabled people's rights at
work. We suggest that the Joint Committee considers evidence
in the first instance about the standards used in auditing premises,
the production of Braille services and the provision of sign language
interpreting.
We believe that some submissions to
the Joint Committee may welcome initiatives to extend protection
to those who are perceived to be Disabled people but who in fact
are non-disabled. Whilst we would hope to see improvements across
all equality legislation with a harmonised approach to tackle
all forms of exclusion, we suggest that the Joint Committee recognises
that extending provision in this direction is meaningless and
unworkable within the framework of existing legislation. It is
in fact a nonsense to suggest that non-disabled people can experience
disability discrimination.
9. Justifiable discrimination
UNISON has long held concerns
that the DDA legalises discrimination against Disabled people.
We believe that the new distinction between indirect and direct
discrimination will go some way to alleviate the extent of discrimination
as well as offer an opportunity to harmonise equality legislation
in the UK.
We understand that it
will be for Tribunals to determine what a "reasonable person"
would find as 'justified' discrimination but we have grave concerns
about what tools Tribunal members will be able to rely upon in
making their decisions. UNISON Disabled members suggest that
the Joint Committee gives consideration to actions that could
increase the number of Disabled people serving on Tribunal panels
and that attendance for all panel members on Disability Equality
and Deaf Equality Training courses is compulsory.
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