Joint Committee on the Draft Disability Discrimination Bill Minutes of Evidence


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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