DDB 72 NATIONAL UNION OF TEACHERS
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THE NATIONAL UNION OF TEACHERS SUBMISSION TO THE JOINT COMMITTEE
ON THE NEW DISABILITY DISCRIMINATION BILL
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Introduction
1. The National Union of Teachers warmly
welcomes the draft Disability Discrimination Bill, which will
offer further long awaited rights to Britain's 8.6 million disabled
people. The National Union of Teachers considers that the need
for reform is urgent in order to make disability equality a reality.
2. The Disability Rights Commission
has recently made key recommendations following their review of
the DDA, a review which was the subject of extensive consultation
with stakeholders. The NUT strongly supports the following key
recommendations made by the Disability Rights Commission:
- The definition of disability should
be improved in connection with people with mental health problems
who experience a great deal of discrimination but have added difficulties
claiming protection under the DDA.
- All examining bodies, awarding
bodies and standard setting agencies should be covered (the exact
parameters of how far these bodies are covered is at present unclear).
- School governors should be covered.
This is important to enable disabled pupils and teachers to fully
participate in school and college life.
- Disability related enquiries before
a job is offered should be permitted only in very limited circumstances.
- Employment tribunals should be
able to order reinstatement or re-engagement under the employment
provisions of the DDA.
Discrimination by Public Authorities
- Section 21D
3. At present, disabled people are
protected from discrimination in the areas of employment, education
and in the provision of goods, facilities and services. The NUT
welcomes the proposal to extend the areas of protection by making
it unlawful for a public authority to discriminate against a disabled
person in the way it carries out its functions. The disadvantage
experienced by the families, partners and care workers of disabled
people as a result of disability related discrimination should
be recognised.
4. This new requirement should provide
the same level of protection and, so far as possible, should mirror
the approach already contained in the sections of the DDA which
relate to discrimination in relation to goods, facilities and
services. It is crucial that there is as much consistency across
the provisions of the DDA as possible.
5. The requirement that there must
be a very much less favourable outcome in the new functions
clause creates a very high threshold, which is not broadly comparable
to the threshold which applies to the delivery of public services,
i.e., that the service is impossible or unreasonably
difficult for a disabled person to use. The NUT would be
concerned to see this inconsistency enshrined in the legislation:
it will cause confusion in practice.
6. The present drafting of the reasonable
adjustments duty in relation to a public authority carrying out
its functions fails to establish an anticipatory duty. The anticipatory
duty on service providers under Part 3 of the DDA and under Part
4 of the DDA has proved essential to promoting disabled peoples'
rights effectively and has proved to be a very important trigger
for change.
7. It is disappointing to note that
the Bill allows justification for discrimination on subjective
rather than objective grounds. Subsection (3) provides that treatment
or an outcome is justified if in the opinion of the public
authority one or more of the conditions specified in subsection
(4) are satisfied and the opinion is reasonably held.
The NUT believes that, if a public authority carries out its functions
in a way which puts disabled people at a substantial disadvantage,
that a justificatory defence should only be available to the public
authority if the authority is able to justify the actions on objective
grounds. It is inappropriate to establish subjective justification
in legislation which purports to eliminate discrimination.
Duties of Public Authorities to
Promote Disability Equality - Section 49A
8. The NUT welcomes the duty to promote
disability equality for public authorities, in the manner contained
in the Race Relations Amendment Act 2000 (RRAA). The NUT believes
it is very important to move away from a system whereby individual
claimants need to take cases to employment tribunals to challenge
acts of discrimination in order to break down barriers. A duty
to promote disability equality for the public sector is central
to reducing disability discrimination and in breaking down institutional
barriers which exclude disabled people.
9. The NUT supports the Disability
Rights Commission in calling for the Government to be more specific
about what duties it intends to apply to public bodies and for
the Government to confirm that there will be parity in this respect
with the RRAA as follows:
- Key public sector bodies including
LEAs should be required to develop disability equality schemes
(along the lines of race equality schemes under the RRAA).
- A specific employment duty (along
the lines of the RRAA) should be placed on LEAs to monitor the
proportion of disabled people among their existing staff and to
monitor applications, promotion and training figures and to publish
the results every year.
- Specific duties should be applied
to schools and FE and HE institutions in line with RRAA requirements,
such as a duty to publish a disability equality scheme and a duty
to monitor and assess how their policies affect disabled students
and staff.
10. The NUT believes it is important
that the duty in the new Bill should not imply that pubic authorities
have any lesser duty under the DDA than under the RRAA. The Government
needs to make it clear that the issues tackled in relation to
race discrimination by public authorities have relevance for the
discrimination faced by disabled people.
11. The NUT believes that LEAs should
be encouraged to take on a greater role in promoting disability
equality within the school community and removing the barriers
facing both disabled staff and students. Disability equality must
be positively pursued across all policy development levels of
each LEA.
Transport
12. The NUT welcomes the extension
of the DDA in the draft Bill to cover discrimination in relation
to the use of a means of transport, as opposed to transport
infrastructure as is currently covered.
13. It is essential that disabled people
have redress under the DDA if they suffer discrimination in relation
to the use of a means of transport. The 8.6 million disabled
people in Britain suffer discrimination in relation to the use
of transport daily. The NUT urges the Government to set out the
intended timetable for regulations to bring all different modes
of transport into coverage by Part 3 of the DDA such as taxis,
private hire vehicles, private rental car hire, trains, shipping,
aviation and buses.
14. The Government must deliver enforceable
rights for disabled people in the field of transport if it wants
to develop a fully inclusive transport system and to build an
environment which is accessible to all.
Meaning of Disability
15. The NUT welcomes the proposal to
extend the protection afforded to those with cancer, HIV and multiple
sclerosis under the DDA so that in future, people with these conditions
will be deemed disabled without having to demonstrate that the
condition has had an adverse impact on their ability to carry
out normal day-to-day activities.
16. Whilst this is welcome, the NUT
is concerned that those with progressive conditions not automatically
covered by the DDA will continue to face the unreasonable barrier
posed by the requirement to prove that they can claim protection
under the DDA. It is not justifiable to subject people who have
a progressive condition covered by the DDA to the additional barrier
of having to show that their impairment has had a negative impact
on their daily activities.
17. The NUT has represented teachers
with progressive conditions who, although clearly discriminated
against, were unable to pursue claims under the DDA because of
this requirement. The NUT believes it is the discriminatory treatment
to which disabled people are subjected that should be the focus
of disability discrimination legislation and not the effects of
their impairment. The draft Bill should extend automatic protection
to a wider class of progressive conditions, therefore, not just
those mentioned in the draft Bill at present.
18. The NUT hopes the Joint Committee
will urge the Government to extend protection under the DDA wider
still to include a greater number of people with mental health
problems. A mental illness is recognised as a disability only
if it is clinically well recognised. As a result, it is
practically impossible for people with atypical or rare forms
of mental illness to exercise their rights under the DDA.
19. The current list of normal 'day-to-day'
activities included in the DDA acts as a further barrier to people
with mental health illness. There is a predominance of physical
activities covered by the current list. The kind of activities
most likely to be affected by mental illness, however, involves
cognitive and emotional responses. Equality of outcome for all
disabled people can only be delivered by the disability discrimination
legislation in its current form if the list of day activities
involves: the perception of reality; behaviour; communication
and judgement. The narrow definition of 'mental impairment' also
reaffirms the common stereotypical assumption that disabled people
are a homogeneous group with physical impairments.
Examining Boards and Standard Setting
Agencies
20. The NUT believes it is critical
for examination bodies to be explicitly covered by the legislation
in the same way in which education providers and qualification
bodies are currently covered. This is essential to achieving equality
for disabled students in educational attainment and contribution
to school and college life.
21. The arrangements relating to examinations
which are under the control of schools, LEAs or further or higher
education institutions currently fall within the provisions of
the new Part 4 of the DDA, but examining bodies do not.
22. In 2003, the Government introduced
the Disability Discrimination Act 1995 (Amendment) Regulations
in order to extend the provisions of the DDA to cover awarding
bodies which devise and award trade qualifications which are directly
employment related eg specific occupational qualifications. The
unitary awarding bodies eg Edexcel AQA and OCR which award GCSEs
and A levels do not fall within the terms of the regulations because
GCSEs and A levels are not professional or trade qualifications.
In order that this situation is clarified, the NUT believes it
is critical that awarding bodies are explicitly covered by the
new Bill.
23. The NUT is also concerned that
current arrangements for disabled students to take and pass examinations
are inadequate in practice for safeguarding the rights of disabled
students. Although regulations and guidance on adjustments for
disabled students have been issued by the joint council for general
qualifications bodies, the Disability Rights Commission has expressed
concern that this guidance is not legally binding.
24. The Disability Rights Commission
has collated evidence which shows that disabled students have
difficulty accessing and taking examinations due to the behaviour
of examination boards, for example in relation to visually impaired
students. Such discriminatory provision cannot currently be challenged
under the DDA. There is a gap in the legislation in respect of
both examining bodies and standard setting agencies and the NUT
urges the Government to take this opportunity to establish coverage
in respect of examinations so that disabled students are not at
an unfair disadvantage and can progress in their chosen area of
work or study.
Additional Areas the Bill Should
Cover
25. The NUT believes that the Bill
should prohibit disability related enquiries before a job is offered
except in very limited circumstances. Disabled workers are still
routinely asked medical questions prior to job interview and are
discouraged by questions from even proceeding with their application.
It is important that the new Bill should prohibit discriminatory
questions prior to job selection in order to achieve greater employment
equality and to get more disabled teachers into the profession,
to stay in the profession and to get on within the profession.
26. The NUT supports the Disability
Rights Commission's recommendation that the Bill should automatically
allow applicants in receipt of specified State disability benefits
to be deemed disabled.
Conclusion
27. A research report, 'Teachers' Careers:
the impact of age, disability, ethnicity, gender and sexual orientation',
published by the University of Glasgow and Middlesex University
in October 2003 found that disabled teachers overwhelmingly report
that disability has affected their career progression. Most respondents
who were disabled teachers reported experiencing difficulties
both in entering and in making progress in the teaching profession.
28. When asked to suggest ways in which
equality of opportunities for teachers' careers could be improved,
respondents called for increasing disability equality training
among governors and appointment panels. A lack of consideration
about the barriers facing disabled teachers was cited in the study
as a continuing inhibitor to development opportunities for disabled
teachers.
29. Disabled teachers were more likely
than other groups to think about leaving the profession and the
teachers interviewed said that this was largely because of the
stress incurred by coping with their disability while facing,
what they perceive to be, a lack of awareness by their colleagues
and insufficient adaptation of their teaching environment.
30. The experience of the NUT suggests
that in order to ensure that the barriers faced by disabled teachers
are removed, it is important that the Government should ensure
that governors are made aware of how to safeguard equality of
opportunity for disabled teachers. The NUT hopes the Joint Committee
will urge the Government to extend the scope of the DDA to governors;
to their appointment and training; and to the exercise of their
duties.
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