Examination of Witnesses (Questions 420
- 439)
TUESDAY 23 MARCH 2004
MR COLIN
WILLMAN AND
MR STEPHEN
ALAMBRITIS
Q420 Chairman: It is a standard practice
in the public sector and many organisations in the private sector.
Mr Alambritis: I am sure our lawyers
would be advising accordingly, but I can confirm that.
Q421 Tom Levitt: Mr Willman, did
I hear you say that someone who did not disclose a hidden disability
at interview should not later rely on that knowledge being known
and being protected?
Mr Willman: No, I said they should
not rely on using it as being discriminated against because of
it. If someone is not aware of it they cannot discriminate against
it.
Q422 Tom Levitt: So as far as the
employer is concerned, the person who did not disclose at interview
but did disclose on the first day of employment would be in the
same position as someone who did not disclose at interview and
then was diagnosed with having a condition the following day?
Mr Willman: If they inform the
employer at any time then the employer is aware of it.
Mr Alambritis: It is where the
employer is never aware of the disability.
Mr Willman: I was actually thinking
more of the employee who does not want to admit they have had
a breakdown or they have suffered depression, thinking it may
exclude them from the job.
Q423 Mr Williams: Speaking as someone
who has been, in the past, and is probably still a small business
employer and who, if we had somebody who was long-term sick, would
find that a great burden to the business, if somebody came before
me applying for a job and I used the criteria that you suggested—the
best person for that job—and yet they had a progressive
illness such as cancer, do you think it is reasonable I cannot
take that into consideration in deciding who should have the job?
They might be the best person for the job but because the long-term
prospects are that they could have time off through illness, is
it right or not right that I take that into consideration?
Mr Alambritis: It would be entirely
up to you.
Q424 Mr Williams: Legally?
Mr Alambritis: Legally whether
it is right to take that into consideration?
Q425 Mr Williams: That is what we
are considering.
Mr Alambritis: There is a huge
debate about rehabilitation; about getting people back into work
and about moving away from GPs issuing sick certificates, moving
it on to the occupational health service. So there is all that
to take into account. I think it is entirely up to the employer,
their reputational aspect and their position in the community,
whether they want to reflect the community and the employees who
service their customers to come from all walks of life. So it
is entirely up to the conscience of that employer, I think, on
that. There was the huge debate about legislation protecting women
and extending the rights of women who become pregnant, and there
was the debate as to whether "Well, employers will no longer
employ women of childbearing age if this legislation passes through".
That has not happened and employers who go down that route will
soon find that their staff is not reflecting the community which
that business serves.
Q426 Lord Rix: The Association of
British Insurers have commented that the wider definition of group
insurance in Clause 2 of the draft Bill (which will cover all
types of insurance schemes not just those related to the termination
of service, retirement, old age or death, or accident or injury,
sickness or invalidity) could cause confusion as to which arrangements
fall within the scope of the bill and which do not. What impact
will the new definition of group insurance arrangements have on
your members? In relation to the last question, could the difficulty
or impossibility of getting insurance for the prospective employee
be a convenient excuse or reason for not employing that disabled
person?
Mr Willman: It will mean to our
members, probably, higher insurance bills, full stop. As to whether
it will encourage discrimination against individuals, it rather
depends on whether insurance is necessary or legally required—as
to whether that is a final decision. Everybody wants to be protected
these days. If you are going to leave yourself open to a later
claim it would be a swaying decision as to not to employ that
person. You are not discriminating against them for disability,
you are discriminating because you cannot take the standard cover.
Q427 Lord Rix: A personal example
is that I have got an artificial aortic valve and I cannot get
medical insurance. Admittedly my age tells against me as well,
but if I want to go to BUPA or PPP or any of those they simply
will not insure me. Surely that could apply to disability as well.
Mr Willman: It could but I would
not see that as a way of stopping someone being employed.
Mr Alambritis: I think the insurance
industry is in the business of risk and they need to acknowledge
that. They have had huge hikes in premiums irrespective of the
claims records of businesses on employer's liability insurance,
and we would urge the Association of British Insurers to be realistic
and remember what business they are in, and that is the business
of risk. It is not for them to say "We will not insure on
this occasion", and they are increasingly doing that and
that is disturbing the majority of our members who want reasonable
cover at reasonable rates.
Q428 Lord Rix: I presume that small
employers do not really carry their own insurance schemes, like
the BBC; they do actually use outside insurers.
Mr Alambritis: Yes.
Q429 Tom Levitt: Given the experience
of your members operating under the current provisions of the
DDA (and in asking that I am aware that because of the small firms'
exemption many of them have no experience of working under it),
what further guidance do you think should be provided to employers
and employees on what is meant by "reasonable adjustments",
and how specific should that advice be?
Mr Alambritis: We are working
very closely with the Disability Rights Commission. We have endorsed,
supported, a couple of guides to small employers on reasonable
adjustment with illustrative cases and with a "frequently
asked questions" section, which is beginning to be helpful.
We believe that the Government was right to move from 20 to 15
in a staged approach in terms of the exemption from employment
liability side of the DDA, and that 15 is gong to move down to
zero. This staged approach has raised the profile of the issue
for small employers. We, of course, have concern for Blackpool
hoteliers, for example, who say to us that they have got very
olde-worlde, small hotels and it would be very expensive for them.
We do say that given reasonable resources you have to do a reasonable
adjustment. Just more information, as much as possible. We are
working together with the CBI, the IOD and the BCC to raise the
profile of the whole issue of the DDA, but you are quite right
to hint that the vast majority, 97 per cent, of all employers
employ less than 50 people. We have a large number of small employers.
There are 12 million in work and there are 2 million disabled
people who want to work, so we do need to get the message out.
Small employers just need a lot more information and lot more
reassurance so that they do not take the reactionary approach
and that they are positive. If you look at Rye, with Georgian
shop fronts, if you look at Stratford-upon-Avon or Guildford,
with its clock tower and its cobbled high street, those small
businesses will need a lot of information. We have been talking
to the Royal Institute of British Architects (RIBA) and to builders,
and they are in there now and they are doing the changes. It is
important to reassure them about reasonable adjustments, and that
is why we called on the Chancellor to introduce a 100 per cent
capital allowance in the first year for firms that triggered off
the changes well before October 2004. We were hopeful that, given
that last year was the European Year for Disabled People, Dawn
Primarolo and Gordon Brown would have acceded to that. What that
would have done is triggered off the accountant advising the small
employer "There is 100 per cent capital allowance; why don't
you take advantage of that now", and that would have got
the message across about reasonable adjustments. The window has
been closed now with the March Budget, but that was a joint letter
from the FSB and the DRC about capital allowances. What happens
with capital allowances is that accountants tip off employers
that they need to take advantage, and that would have got the
message out.
Q430 Tom Levitt: A supplementary
on that: as we have established, many of your members have had
a nine-year exemption from the DDA, on the employment side but
not from goods and services, clearly. Nowhere in the present bill
is there any suggestion of any further exemption. Do you think
there should be?
Mr Alambritis: We are having a
debate within the FSB on exemptions. We have seen a slow-down
in ministers standing up and saying "We are introducing this
legislation, but for small firms there will be an exemption."
There is a huge debate about exemptions, and the fact that they
can create artificial levels where if a firm goes up to that level,
on the advice of an accountant or a lawyer, it stops growing.
So on exemptions we are mindful that perhaps there is a case for
exemptions on VAT, on Corporation Tax but on issues to deal with
disabled people we believe now that exemptions are not the way
forward.
Q431 Tom Levitt: Thank you. A very
interesting reply. We talked earlier on about the interview situation
and the obligations on the employee. The TUC has argued that an
employer should only be permitted to ask disability related questions
during the recruitment process in order to establish whether reasonable
adjustments are required during recruitment or in order to carry
out the job. What are your views on the employer asking disability
related questions?
Mr Willman: I think the TUC view
is quite correct. There is no need to worry about anything, you
are looking for the right person to do the job.
Q432 Lord Swinfen: Carrying on with
reasonable adjustment again, if disability leave (ie, time off
to allow someone to adjust to a newly acquired impairment or a
change in an existing impairment) were included as a reasonable
adjustment, would this pose difficulties for small employers?
Mr Willman: Yes, it would, but
for the small employer, usually, the employee is an integral part
of the team; everybody puts themselves out to help them.
Q433 Lord Swinfen: So I would be
right in thinking that any difficulty would be offset by the value
of retaining someone who was experienced and already fully trained?
Mr Willman: Yes. Allowances can
be made, and often are in small companies, for people who work
from home.
Q434 Mr Williams: If we turn now
to employment tribunals, we gather from your written submission
that you have had a recent survey that found a quarter of small
businesses think that employment tribunals are unfair, and a further
39 per cent of firms consider the systems to be very unsatisfactory.
Were there any particular issues raised by this survey which have
implications for small employers' experiences of the DDA?
Mr Alambritis: No. We did not
tease out the types of cases that the members were dealing with.
The survey on employment tribunals was to try to see the extent
to which our members were settling cases because ministers were
saying that there are now fewer employment tribunal cases and
we were pleased with that, but we also need to make sure that
there are fewer employment tribunal cases because industrial relations
are going well and not because employers were being advised by
lawyers to settle.
Q435 Baroness Wilkins: Many of our
witnesses have argued that employment tribunals should have the
power to recommend reinstatement of an employee if an employer
is found to have discriminated against them. What are your views
on that?
Mr Alambritis: The employment
relationship is founded on trust and confidence. That is the term
that lawyers use. Provided, despite the employment tribunal case,
that that trust and confidence is still in place we would have
no objections to that, but by the time you have gone through an
employment tribunal, the trust and confidence has well and truly
gone. It would be innovative to insist on reinstatement. We do
not know the extent to which the employee would want to go back
to that firm if the tribunal has been acrimonious. We have no
view on that. All we know is that the trust and confidence might,
by then, have gone.
Q436 Baroness Wilkins: You would
not like to see it laid down that they should reinstate them?
Mr Alambritis: Even if the law
was laid down that there should be reinstatement, we believe very
few employees would opt for that option, despite the fact that
the dignity of work is very important. The whole basis of the
employment relationship is steeped in trust and confidence.
Q437 Baroness Wilkins: That is the
employee. What about the employer's point of view?
Mr Alambritis: That is the employee's,
yes. The employer, even today, has the option to reinstate.
Q438 Baroness Wilkins: Or not?
Mr Alambritis: Or not to reinstate,
yes.
Mr Willman: With smaller employers
there is less likelihood of the person being able to go back because
there is only one office, or one very small unit, and they are
probably going to come into close proximity with people they had
the clash with, or whatever the cause was, which may make it uncomfortable
for all parties, whereas larger companies will have the option
of moving people into different departments, different offices,
so there may be a place for small businesses not being happy to
reinstate but bigger businesses reinstating in another office,
which answers your question.
Q439 Lord Rix: Can I ask a very basic
question because I cannot find the answers anywhere in all this
paper. What constitutes a small business? How many employees would
you have to have to become a medium-sized business or a large
business?
Mr Alambritis: There is a three-pronged
approach now to the definition. There is the definition called
"micro" business, which is 0-9 workers. That is a "micro"
business. "Small" is 10-49 workers and "medium"
is 50-249 workers. That is now accepted by both the DTI and the
European Commission. In the old days we talked about SMEs (Small
and Medium-sized Enterprises) employing up to 500 people, and
that definition was too wide. There is a more targeted approach.
If you want to talk about the nation of small shopkeepers that
Napoleon called Britain, then you are talking 0-9 workers.
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