Memorandum from the Royal College of Nursing
(DDB 43)
EXECUTIVE
SUMMARY
— The definition of disability should
be further extended to include all progressive diseases and the
qualifying period for a "substantial and long term adverse
effect" should be reduced from 12 months to six months. In
addition, the terms of the Bill should be extended to allow protection
from discrimination by association and in circumstances of perceived
disability.
— Although reactive measures towards
disability discrimination are a step in the right direction, from
experience we feel that more needs to be done to change attitudes
and prejudices.
— Whilst we accept the efforts made
in the draft Bill to better protect those with disability, there
remain a number of omissions, which if included would allow greater
protection. In particular there should be provision made for voluntary
workers; and tenants with a disability should be granted a clear
form of legal redress against discrimination.
— Those who prove discrimination by
their employers at an employment tribunal should be granted the
power of reinstatement.
1. INTRODUCTION
1.1 With a membership of over 360,000 registered
nurses, midwives, health visitors, nursing students, health care
assistants and nurse cadets, the Royal College of Nursing is the
voice of nursing across the UK and the largest professional union
of nursing in the world. RCN members work in a variety of hospital
and community settings in the NHS and the independent sector.
The RCN promotes patient and nursing interests on a wide range
of issues by working closely with Government, the UK parliaments
and other national and European political institutions, trade
unions, professional bodies and voluntary organisations.
1.2 The RCN is keen to ensure that our members
are provided with the greatest protection possible against all
forms of discrimination in the workplace. RCN WING (Work Injured
Nurses Group) exists to provide advice and support for members
made ill through work, or affected by disability in the workplace.
Through WING, the RCN has worked for greater equality for those
nurses with a disability. Although many of the measures in the
draft Bill are to be welcomed, there are certain areas where we
believe improvements could be made.
2. CLAUSE 6—DISCRIMINATION
IN RELATION
TO LETTING
OF PREMISES
2.1 Clause 6 inserts new sections into the
Disability Discrimination Act making it unlawful for landlords
to discriminate against a disabled tenant by failing to make the
necessary physical alterations to the premises. We welcome this
amendment to the Disability Discrimination Act as those with a
disability often find it difficult to find appropriate housing
to suit their needs, and feel this will go some way to addressing
the problem.
2.2 However, we are concerned about the
implications of the amendment for disabled tenants seeking legal
redress against a landlord who refuses to consent to alterations.
As the draft Bill stands, tenants who experience discrimination
in this way will have to seek redress through existing landlord
and tenant legislation which can be a complex and often lengthy
procedure. We feel that it is necessary to identify in the Bill
who will take action on behalf of tenants in this situation, and
what penalties will be imposed on landlords failing to comply.
Doing so will provide a simple method of legal redress and act
as a deterrent against discrimination.
The RCN urges the Government to specify what
form of legal redress will be available for disabled tenants experiencing
discrimination from their landlord, and identify who will have
responsibility for taking up their case.
3. CLAUSE 8—DUTIES
OF PUBLIC
AUTHORITIES
3.1 Clause 8 outlines the duties of public
authorities in tackling disability discrimination. We welcome
the intention behind clause 8 which seeks to align the Disability
Discrimination Act with the Race Relations Act by ensuring that
public authorities actively promote equality. However, although
the measures in clause 8 are a step in the right direction, it
is our experience that attitudes towards disability are rarely
changed by reactive measures alone. Those working in the health
service often feel they have a positive attitude towards those
with disability; however in reality they tend to view disability
as an affliction or illness. As a result this can often lead to
discrimination, particularly towards other staff with a disability.
3.2 We feel that more needs to be done to
foster a culture of understanding and respect in the workplace
towards those with any form of disability, and would suggest the
Government look at introducing more prescriptive powers.
The RCN feels that the measures in the Bill
relating to the duty of public authorities to combat discrimination
would be strengthened by extending clause 8 beyond reactive powers
alone.
3.3 The RCN is concerned about the lack
of an appropriate enforcement mechanism to impose the duty on
public authorities under the terms of clause 8. The equivalent
provision in the Race Relations Act 1976 has experienced problems
of enforcement and efforts should be made to eliminate similar
obstacles with this legislation.
3.4 In our experience there remains widespread
ignorance among health care workers about the impact of the statutory
duty in the Race Relations Act on their own practice and their
employing organisation's race equality scheme. As a result, enforcement
of the Act has been hampered. Taking steps to avoid this in the
Disability Discrimination Bill would enable the Bill's measures
to be implemented more effectively.
The RCN urges the government to examine the
problems encountered in the enforcement of section 71 of the Race
Relations Act and asks them to take steps to ensure similar difficulties
are not experienced with this Bill.
3.5 We also feel that it would be helpful
to provide a list of public authorities covered under clause 8
to ensure there can be no confusion over who is liable under the
terms of the Bill. We would envisage a list of specified authorities
similar to that provided in Schedule 1A of the Race Relations
(Amendment) Act 2000.
The RCN seeks greater clarification on the
public authorities covered under the terms of the Bill by including
a list of those who will be subject to the general duty under
clause 8.
4. CLAUSE 12—MEANING
OF "DISABILITY"
4.1 The expanded definition of disability
to include cancer, multiple sclerosis and HIV is to be welcomed.
In the past some of our members have felt vulnerable in the workplace
as a result of their HIV diagnosis. The greater protection afforded
to them through this clause will provide the necessary security
and protection against discrimination.
4.2 However we feel that the definition
could be extended yet further to include all progressive diseases
and afford protection for those suffering from conditions such
as motor neurone disease and Huntingdon's chorea. Such conditions
often have a stigma attached with inaccurate assumptions made
about an individual's ability to carry out their work. Widening
the scope of the definition to include all progressive diseases
would help to eliminate this problem and ensure fairer treatment.
The RCN believes the definition of disability
should be widened to include all progressive diseases.
4.3 Although the draft Bill makes reference
to mental health under the definition of disability, we strongly
feel that clarification should be provided on what constitutes
a "mental impairment". Many of our members have experienced
psychological illness and suffered unfair treatment as a result,
but have been unable to establish themselves as disabled under
the terms of the 1995 Act. As outlined by the Disability Rights
Commission, applicants have lost in 16% of discrimination cases
as a direct result of not having met the statutory definition
of disability.[18]
It is therefore clear that a much more specific definition of
mental health is required and would afford greater protection
for those suffering from mental illness.
4.4 The RCN supports MIND in their call
for amendments to the draft Bill to provide better cover for mental
illness, in particular for those suffering from depression for
less than 12 months, schizophrenia, self harm, and eating disorders.
4.5 Furthermore, the requirement that the
disability must have a "substantial and long term adverse
effect" has been problematic as it requires the impairment's
effects to have lasted 12 months or more. This has caused problems
for nurses who have experienced clinical depression for a limited
period with no chance of recurrence, and have been treated unfairly
as a result. Reducing the qualifying period from 12 months to
six months would allow protection for those suffering from conditions
such as depression and clinical anxiety.
The RCN is calling for the definition of
disability to be amended to afford wider protection for those
suffering from mental illness. In particular the qualifying period
for a "substantial and long term adverse effect" should
be reduced from 12 months to six months.
4.6 Under the 1995 Disability Discrimination
Act, those who are perceived to have a disability, or are associated
with those suffering from a disability are not offered protection
from discrimination. Given the stigma often attached to conditions
such as HIV, there is a potential problem for those who are perceived
to have the infection, perhaps because of a previous test for
HIV, albeit with a negative result. Similarly, those caring for
the disabled can suffer discrimination as a result of their association
with a particular condition. Often the effects of discrimination
in these circumstances can be just as distressing as for those
who suffer from a disability, and so they should be afforded similar
protection.
The RCN believes that the Bill should be
extended to offer protection from discrimination by association
and in circumstances of perceived disability.
5. PRE-EMPLOYMENT
QUESTIONNAIRES
5.1 Pre-employment questionnaires are an
important part of the recruitment process, and many of the questions
asked often relate to personal health and the number of sick days
taken. Whilst the RCN recognises the need to ask such questions
in certain circumstances, we are concerned that such information
can result in discrimination in the selection procedure. Research
carried out by the Department for Work and Pensions identified
recruitment as the most common area where discrimination occurs,[19]
and it is often the case that the fear of discrimination can deter
a disabled person from applying for a position. Given the prevalence
of discrimination in the recruitment process, we feel that disability
related questions should only be asked by professionally qualified
occupational health staff who are in a position to properly evaluate
the information.
The RCN believes the use of pre-employment
disability related enquiries should be limited, and where they
are necessary they should be the responsibility of professionally
qualified occupational health staff.
6. VOLUNTARY
WORKERS
6.1 The draft Bill does not include measures
to prevent discrimination against voluntary workers, and we believe
this is a significant omission that needs to be addressed. Voluntary
work not only provides an important contribution to the community,
but in the experience of RCN WING it also plays an important role
in the rehabilitation of workers affected by disability.
6.2 The Disability Rights Taskforce has
recognised the importance of volunteering to disabled people.
In order to ensure their continued involvement in voluntary work,
we believe that disabled voluntary workers should be protected
from discrimination under the terms of the Bill.
The RCN believes the draft Disability Discrimination
Bill should be extended to allow protection for voluntary workers.
7. EMPLOYMENT
TRIBUNALS
7.1 Employees who are discriminated against
under the terms of part 2 of the Disability Discrimination Act
1995 are not being offered the power of reinstatement under the
terms of the draft Bill. In practice this will mean that those
who successfully prove discrimination by their employer will not
be able to return to their job. This is a significant shortcoming
of the draft Bill which undermines its purpose to afford greater
protection to those with a disability.
The RCN believes that the draft Bill should
include provisions for reinstatement for employees who successfully
prove that their employer has discriminated against them.
February 2004
18 "Disability Equality: Making it Happen".
Disability Rights Commission, April 2003. Back
19
"Disabled for Life; attitudes towards and experiences of
disability in Britain", Department for Work and Pensions,
2002. Back
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