DDB 87 UNUMPROVIDENT
DRAFT DISABILITY DISCRIMINATION
BILL
JOINT SCRUTINY COMMITTEE
SUBMISSION
BY
UNUMPROVIDENT LTD
25th FEBRUARY 2004
EXECUTIVE SUMMARY
- UnumProvident is the UK's leading income
protection insurer. At the end of 2003 in the UK it protected
approximately 1.34 million lives and paid benefits to people with
disabilities and other health-related conditions totalling some
£178 million.
- Any new legislation should support sick
and disabled people in finding and staying in work, as employment
is one of the best ways of ensuring independence and choice.
- We welcome the inclusion of MS, cancer
and HIV but would like to see the Draft Bill also focus on mental
health - an increasing source of disability in the workplace.
- We would like to see the Draft Bill
give greater clarity to definitions of disability to aid effective
delivery of workplace reasonable adjustments
- We are pleased to see the Draft legislation
has addressed the use of transport - and private vehicles in particular
- We would like to see the Government
provide a commitment towards substantial funding of communications
to employers on the extension of the current DDA and any new legislation.
- We would like to see further clarity
on the duties of public bodies
- The Draft Bill should address the issue
of disability and the employment application process.
- The Bill should do nothing to reduce
the availability of group (workplace) insurance
- We would like to see any draft legislation
passed before any forthcoming General Election
A. INTRODUCTION
UnumProvident has been operating in the
UK for over 30 years, and is the UK's leading provider of income
protection insurance. At the end of 2002 in the UK alone, it protected
over 905,000 lives and paid benefits to people with disabilities
and other health-related conditions totalling some £133 million.
From our perspective a key route to the
enrichment of disabled peoples life chances is firstly through
getting them into employment and then by retaining them in the
workforce. Our view is that exposure to the diverse economic and
societal benefits that occupation can bring is a natural and easy
way for people with disabilities to really fulfil themselves and
also to access the status and self-esteem opportunities that all
non-disabled people typically take for granted. For it is important
to remember that acquiring or developing a disability does not
necessarily make a person incapable of work. In UnumProvident's
experience, most disabled people are capable of some work, would
like to work and, crucially, have an expectation that they
will return to work in some capacity
Consequently we believe that there is much
more that could be done. There are a number of issues that are
absolutely key in terms of helping disabled people a) to find
suitable work in the first place, b) to be in a position - financially
and practically - to take up that employment and c) to be retained
in that employment over a period of time. In order to have a significant
impact on return to work outcomes for disabled people, government
policies must be holistic, addressing both the demand for disabled
workers from both employers and the economy as a whole, as well
as the supply side of disabled people offering themselves for
work.
The publication of the Draft Disability
Bill is very timely, for, together with the forthcoming extension
of the Disability Discrimination Act and the setting up of a single
equality commission, it should provide all interested parties
with a platform to propose meaningful ways forward into work for
disabled and non-disabled people alike. And thus give flesh to
the Government's guiding principle for welfare reform, namely
'work for those who can, and security for those who cannot'.
We would welcome the opportunity to discuss
our work with the Scrutiny Committee in greater detail and/or
to provide any additional information or evidence that the Committee
might feel pertinent to its work and analysis programme.
B. RESPONSE
1.1 UnumProvident welcomes the principles
behind the draft Disability Discrimination Bill which seeks to
increase opportunities and choice for disabled people in all areas
of life. It further builds on the extension due to take effect
in October 2004 of the duties in the Disability Discrimination
Act (DDA) concerning service providers, and the major changes
to the employment and training provisions of the DDA, including
ending the current exemption of small firms. We also greet positively
the further measures envisaged within the draft Bill which extend
and strengthen disabled people's rights and place significant
new duties on public bodies, transport operators and many others.
1.2 We welcome the inclusion of MS, cancer
(see 1.3) and HIV in terms of defined conditions of disability
but would like to see the Bill give a clear focus to the issue
of mental health - an increasing source of disability in the workplace.
Currently the definition of disability within the DDA requires
that to comply the disability must be severe enough to 'have a
substantial and long term adverse effect on his ability to carry
out normal day-to-day activities.' An issue here is the fact 'the
normal day-to-day activities' relate predominately to physical
rather than mental impairments. Thus a number of conditions such
as depression are excluded. The problem faced by people with depression
is that there may be several episodes over a relatively short
period, but no episode lasts for 12 months and depressive illnesses
also have a strong tendency to reoccur. We would like to see the
Bill address this issue with key support being made available
for both for companies and employees.
1.3 In terms of the wider definition of
disability we have some concerns about a condition-by-condition
approach to the definition of disability with lists of individual
conditions being covered seemingly on an incremental basis. (Cancer
for example is a generic non-medical term which covers a wide
range of carcinomas, the site of which will be congruent with
varying degrees of symptoms and severity, which in turn leads
to very different consequent degrees of disability, treatment
costs and long-term rehabilitation implications. E.g. To place
basal cell, pancreatic, colo-rectal, prostate and breast carcinoma,
each with their varying prognoses, within a single all-inclusive
definition will surely lead to problems in the future. While it
may be difficult, the search for a comprehensive definition of
disability that covers all relevant conditions should in our view
not be abandoned. We would also like the Bill to support greater
clarity in definitions of disability to aid the effective delivery
of workplace reasonable adjustments.
1.4 We are pleased the Bill addresses the
issue of transport on private vehicles and on road and rail vehicle
accessibility, although the timescales for this appear very lengthy
i.e. 2025. We would also want to see greater clarity of powers
for local enforcement of the legislation.
1.5 It is our experience that there is a
lot of misunderstanding and ignorance, both amongst consumers
and employers, about the scope and scale of existing disability
ant-discriminatory legislation and we ask the Government to set
aside sufficient resources to provide an extensive communications
campaign to explain the changes envisaged by both the new Bill
and the forthcoming DDA extension in the Autumn.
1.6 The recent addition of a new clause
extending protection for local councillors, in a way that is similar
to the protection that local government officers receive, is reassuring
but we still have some concerns about the precise duties owed
to disabled people by public authorities and would seek further
clarification on this point.
1.7 When the DDA came into force the reasonable
opinion test existed to allow for smaller service providers who
might not neither have the expertise in-house nor have easy access
to information. We hope that 'reasonableness' test will continue
to apply within the application of this bill.
1.8 The bill remains silent on the issue
of disability extent raised at the point of application. It is
not clear therefore to what extent employers can reasonably seek
information from potential employees as to their status in terms
of, for example, the potential necessity to make enquiries about
the need for reasonable adjustments either at interview or in
the job. There is obviously potential for unnecessary intrusion
here but in cases where the applicant otherwise meets the requirements
of the job description, we would not like questions about medical
records, that are relevant to conducting of a fair recruitment
process, arbitrarily banned from appearing on an application form
without further consultation and debate.
1.9 We have some concerns about the provisions
in the bill regarding group Insurance [S's12 &21 of the Schedule].
Our reading of this is that, in essence, the Current provisions
in the DDA are being repealed and group insurance will be treated
like other insurances i.e. on an 'objective justification' basis.
Our fear here is that there will be more instances where group
insurance providers, such as ourselves, could be prone to a discrimination
charge. This is because the current regulations state that the
insurer (as opposed to the employer) can only be held responsible
where they carry out all decisions relating to eligibility for,
and amounts of, benefits etc. The new provisions appear to remove
this protection for the insurer. Whilst it right that insurers
should be held accountable for any discriminatory decisions they
make, they should not be held liable for decisions taken by the
employer that are wholly beyond the insurer's control. This principle
was recognised by the DRTF in their report 'From Exclusion to
Inclusion' [January 2000] and also by the DWP in draft legislation
on disability intended to implement the Employment Directive,
although it was subsequently decided that insurance was outside
the scope of the Directive. We would have hoped that a suitable
form of words to this effect could be included in the Explanatory
Notes to the Bill to this effect and would be prepared to be of
assistance in drafting this. There may also be some schemes where
decisions are effectively taken jointly by the employer and the
insurer. Under the proposed bill it will be possible to hold the
insurer jointly liable, so should the bill in its present form
reach the statute book, then insurers may be required to re-appraise
their relationship with the employer and could seek more control
over some decisions that are traditionally exclusively the domain
of the employer.
1.10 We hope the Government will ensure
that the Bill becomes law before the next General Election and
where regulations are necessary we hope the Government publishes
draft regulations as soon as possible.
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