Memorandum from the Public and Commercial
Services Union (DDB 28)
DRAFT DISABILITY
DISCRIMINATION BILL—SUMMARY
OF EVIDENCE
FROM PCS
1. PCS welcomes the publication of the Draft
Bill but believes it needs a wider scope than only the report
of the Disability Rights Task Force.
2. PCS would like to see a radical overhaul
of the definition of disability but realises that the Draft Bill
is probably not the vehicle for this.
3. Those with mental health issues need
improved protection through the range of changes suggested.
4. We believe that those discriminated against
through a wrong assumption that they are a disabled person and
those facing discrimination through their association with a disabled
person should be afforded protection under the Act.
5. ALL progressive conditions, not just
cancer, HIV and MS, should be covered from date of diagnosis.
6. Qualifying to receive certain state disability
benefits should lead to being deemed as a disabled person under
the Act.
7. Genetic predispositions should be covered
under the Act.
8. The duty on public bodies to eliminate
discrimination should be applied to all employers.
9. Tribunals should have powers to recommend
permanent changes to policies procedures and practices that cause
discrimination.
10. Disability leave should be given as
an example of reasonable adjustment.
11. The DRTF recommendation on equal access
to occupational pension schemes should be fully implemented.
12. Any monitoring recommended as a result
of the duty on public bodies should be based around "needs"
rather than "impairment type".
DRAFT DISABILITY
DISCRIMINATION BILL—EVIDENCE
FROM PCS
1. Introduction
1.1 The Public & Commercial Services
union (PCS) is an independent trade union, affiliated to the TUC,
representing nearly 300,000 members. Most of our members work
within the UK Home Civil Service, though we also represent workers
in associated public service roles and in private companies, especially
those performing tasks contracted out from the Civil Service in
recent years.
1.2 PCS takes an active interest in all
equality issues including disability and uses the knowledge and
experience of its disabled members to inform our disability equality
agenda. We represent members facing discrimination in the workplace,
including using the DDA within the employment tribunals.
2. Overview
2.1 PCS welcomes the publication of the
Bill and the much needed and long awaited proposed improvements
to the DDA. However, we are concerned that the Bill only seems
to address the issues identified in the original report of the
Disability Rights Task Force and has not included other findings
on the adequacy of the DDA, especially the Legislative Review
published early last year by the Disability Rights Commission.
The Task Force report was produced some four years ago and subsequent
studies identifying difficulties and inadequacies within the DDA
should be addressed at this opportunity.
3. Definition of disability
3.1 PCS would prefer to see a radical overhaul
of the way in which disability is defined within the DDA. The
current reliance on medical and functional aspects means that
many people who face discrimination for reasons linked to (or
perceived to be linked to) their medical status are unable to
obtain legal redress for this, as they are judged not to meet
the narrow definition of disability within the Act. We do however
recognise that such a radical approach is unlikely at this stage
and would therefore offer alternatives to amend the current proposed
improvements in a way that would benefit further groups of disabled
people.
3.2 Mental health
Union members with mental health difficulties,
particularly those with reactive depression and anxiety state
find many difficulties in securing the protection of the DDA.
In order to overcome at least some of these, we support the recommendations
of the DRC Legislative Review, namely:
— To extend the list of normal day-to-day
activities to include "the ability to communicate and interact
with other people";
— To revise guidance on the extent
of "perception of physical risk" to include within it
people who act out self-harming behaviour;
— To remove the requirement in relation
to mental illness that it is "clinically well-recognised";
— To reduce to six months the definition
of "long-term", at least in relation to those with depression
and anxiety.
3.3 Other definition issues
3.4 At present the only aspect of the act
applicable to those who do not meet the definition is the protection
against victimisation. This allows employers (and others) free
rein to discriminate against someone in a mistaken belief that
the person is a disabled person, or through their association
with a disabled person. These concepts need to be incorporated
into the scope of protection offered by the Act.
3.5 In the original definition, those with
any form of progressive impairment were seen as needing earlier
protection from discrimination. This is still the case and the
reasoning for offering protection from the date of diagnosis to
those with cancer, HIV positive status and Multiple Sclerosis
is equally applicable to all other progressive conditions. This
aspect of the Bill should therefore be broadened.
3.6 It is not readily understood, by workers
or by employers, how it is possible for someone to qualify as
a disabled person for receipt of state benefits but not for protection
under the DDA. Receipt of certain such benefits should be a reason
for a person being deemed to be a disabled person under the DDA.
3.7 We hear increasingly about genetic testing
and screening and how use of these techniques can assist individuals
in predicting likelihood of inherited disease or disability. However,
there is nothing in the DDA as it currently stands to protect
such persons from discrimination in employment. This, of itself,
could act as a powerful deterrent to such people seeking or submitting
for testing and thus exposing themselves to possible unfair treatment
by employers, insurers etc. It would be relatively straightforward
to add in protection under the Act for those with a medically
identified pre-disposition to certain impairments.
4. Employment issues
4.1 As a union with significant membership
within public authorities, we strongly welcome the proposals for
a positive duty to eliminate discrimination contained within the
Draft Bill. Such a duty will greatly assist in addressing systems
and arrangements that mitigate against the employment and/or retention
of disabled workers. As such, PCS firmly believes that ALL employers,
not just those in the public sector, should come under such a
duty.
4.2 Linked to this, as a possible alternative,
tribunals should be given powers to recommend the alteration of
discriminatory practices and procedures, not just as is currently
the case, the power to order change in respect of a single applicant
in a case.
4.3 Disability leave is a key resource for
disabled people in the workplace and one which permits necessary
time away from treatment, securing adjustments and necessary additional
training with minimum impact on things such as sickness absence
limits, which tends to be the way such time is regarded in the
absence of disability leave agreements. We would strongly support
a clearer direction from the Government towards the adoption of
disability leave facilities by employers and believe that this
could be usefully done by including disability leave as one of
the list of examples of "reasonable adjustments" included
in the Act and guidance.
5. Occupational Pension Schemes
5.1 PCS remains deeply concerned at the
Government's failure to accede to the clear recommendation of
the Disability Rights Task Force in relation to equal rights of
access to occupational pension schemes at the point of starting
work.
5.2 We face, within the Civil Service, a
system where disabled staff are medically and actuarially scrutinised
when they first start work and if it is judged that they present
a "significant" risk of requiring early ill-health retirement
they are then excluded from any ill-health retirement pension
under the Scheme—even if the reason for retirement subsequently
bears no link with the reason for initial exclusion.
5.3 We lobbied hard for the DRTF to review
this aspect of the employment regulations, which they did and
made a clear recommendation to remove this discretion under the
Act. The Government have never fully responded to this recommendation
and the proposed amendments due in October under the Employment
(pension) regulations, implementing the requirements of the European
Article 13 Directive do not achieve the aims that were set out
in the DRTF report. Indeed, the current approach of the Civil
Service pension scheme is to cut the employees contribution rate
from 3.5% to 2% which they judge to be sufficient "reasonable
adjustment" to bring their actions within the scope of the
new rules that come into force in October this year. This is hardly
the "equal rights of access" that the Rights Task Force
recommended.
5.4 We urge the committee to recommend that
this is properly covered within the draft Bill.
6. Monitoring in employment
6.1 Following on from the adoption of a
positive duty on public authorities (or possibly all employers)
to promote equality, if the Race Relations (Amendment) Act model
is followed, we would expect to see regulations and accompanying
guidance about what aspects of their performance, including staffing
related issues, should be monitored and statistics published.
6.2 The DDA adopts a very "medical"
approach to the question of disability, which is singularly unhelpful
in monitoring terms: knowing that an organisation has 5% of its
staff with visual impairments is of little practical use.
6.3 A better form of monitoring is one which
relates more closely to the barriers and difficulties faced by
groups of disabled people, which can then be directly linked to
the actions of the organisation in addressing those. If the organisation
knows that it has 2% of staff who require written material in
audio tape format, 2% that require a larger typeface and 1% who
need such things in Braille, they can then clearly see how to
arrange their publications strategy to meet the needs of their
staff.
6.4 We would ask the committee to consider
this in any recommendations on the supporting regulations, orders,
codes of practice or guidance that flow from the requirements
in the draft bill.
February 2004
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