Memorandum from the Graphical Paper and
Media Union (DDB 48)
The Graphical Paper and Media Union represents
approximately 100,000 workers in the printing, paper, publishing
and packaging industries. Within that we also have substantial
membership at Remploy as well as representing disabled people
in open employment.
Generally we welcome the bill as a step towards
delivering full civil rights for disabled people. However, we
are increasingly disturbed at the use of regulation rather than
primary legislation to put new laws into effect. The bill is in
outline only and the "meat on the bones" will only come
through secondary legislation. As yet there is no commitment on
timescales for the introduction of secondary legislation. We are
strongly of the opinion that there should be a clear commitment
to introduce the secondary legislation by a given date or dates
and this should be announced to the public.
This is a poor substitute for primary legislation
and this practice should be resisted in future.
There are a number of points we would wish to
raise on behalf of our members in relation to the substance of
the bill. Of crucial importance is the definition of disability
which is a huge hurdle that is frequently used to deny justice
to disabled workers.
DEFINITION OF
DISABILITY
Specifically, we believe that the definition
of day-to-day activities is too narrow especially in relation
to the effects of mental health disabilities. The tests rely too
heavily on medically well-recognised conditions and are incapable
of assessing recurrent conditions. Depression is a particularly
distressing example the GPMU has had many examples of having to
turn down cases because it is impossible to get a more specific
diagnosis yet it is clear from interviewing the member that he
or she is not able to cope with work in the same way as before
the depression took hold.
The tests do not relate to the workplace specifically
and so lead to perverse judgements that declare someone is not
disabled when clearly they are unable to undertake their job responsibilities
in the same way as their colleagues because they require a reasonable
adjustment to take account of the different way in which they
need to operate.
In terms of progressive conditions it would
be preferable protect people from the point of diagnosis and use
regulations to spell out which conditions are covered. This would
actually be a sensible use of secondary legislation and avoid
requiring people to jump through hoops to gain protection that
commonsense indicates clearly should be available.
If the government's aim continues to be that
disabled people should be able to work wherever possible, then
these measures would actually help to keep people in jobs while
they adjust to their new circumstances. Here it would be appropriate
to mention the role of disability leave which is not part of the
bill. The high figures available on industrial injury and our
experience that people often end up unemployed as a result of
such injury indicate that there is a substantial role for disability
leave in ensuring that people stay in work wherever possible.
Most of these people do not want to lose their jobs and the increased
security that disability leave would offer may even speed their
recovery by removing additional stress at a time of acute vulnerability.
Genetic predisposition has not been included
in the legislation and this is going to be a growing problem that
should be dealt with early to set clear limits on companies' policies.
There is a real danger that genetic testing data could be used
in a totally inappropriate way that undermines employers' duties
to provide a safe and healthy working environment and that the
real meaning of such data will be poorly understood in any case.
The final point under this section is to request
that the continual re-testing of people claiming incapacity benefit
is brought to an end. Once it has been established that someone
has a disability that should be the end of it. This is not the
same as saying that everyone claiming incapacity benefit should
be deemed to be disabled, only where it is appropriate.
PUBLIC DUTY
Our main concern with this section is consistent
with our position on all discrimination legislation. We believe
that the duty to promote should be extended to the private sector.
It cannot be right that we introduce a hierarchy of rights where
public sector employees enjoy a much higher standard of treatment
than those in the private sector.
We are also of the opinion that there needs
to be an action plan to implement the duty or it will remain no
more than a pious hope that equality for disabled people can become
a positive measure rather than simply an individual right that
encourages tribunal cases to be brought.
TRANSPORT
A frequently mentioned barrier to full participation
at work by disabled people is the ability to access transport
to get to work. One of the issues raised with us has been that
when Remploy factories close or re-organise, for instance, the
change in transport required for transferred employees is inadequate.
It is therefore crucial that the government gives a clear commitment
to introduce the secondary legislation specifying the duties for
various forms of transport at a specified time that is the shortest
possible timescale to ensure all forms of public transport are
covered.
RE-INSTATEMENT
OR RE-ENGAGEMENT
Given the well-documented problems of disabled
people facing barriers to employment and the lack of rehabilitation
of those injured at work into the workplace, this is one Task
Force recommendation that must be included in the new legislation.
A disabled person losing employment will almost certainly find
it harder to find a new job. If that person has suffered discrimination
it is only right that the tribunal have greater powers to order
re-instatement or re-engagement.
DISABILITY-RELATED
QUESTIONS
This is another Task Force recommendation that
has been ignored. The government has stated, in its response to
the Task Force recommendations that they do not wish to introduce
a limitation on questions that can be asked about a person's disability
in case small employers get caught out.
This is an astonishing approach to a piece of
legislation that clearly has the role of instigating a change
in culture in relation to disability. The fact that employers
might fall foul of the law begs the question of why we have any
laws given that we could all find ourselves in breach at any time.
The answer is not to ignore the problem but
to educate employers about all the provisions of the disability
legislation to ensure they are clear about their duties. It really
does not serve to improve the performance of small companies to
allow them to behave in a cavalier fashion towards their employees
by excluding them from perfectly reasonable legal duties.
ANTICIPATORY DUTY
The need to remove the systematic barriers that
disabled people face at work means that we feel it is important
to extend the existing duty covering Parts III and IV on goods
and services to Part II Employment. This is especially relevant
if the duty to promote is not to be extended to the private sector.
JUSTIFICATION
The GPMUs own conference has established clear
policy that they wish the section of the law allowing justification
of discrimination to be abolished. We recognise that European
law has reduced the scope of this feature of the law but still
feel that it is wrong and should be removed.
Furthermore, the GPMU is concerned at the use
of the concept of "a reasonable person" in judging whether
an employer has acted reasonably and can justify the treatment
of the disabled employee is dangerous. There is no such thing
as a reasonable person in reality because everyone is a product
of their society and its inherent stereotypical reactions and
prejudices. This is an unnecessary development and has already
led to perverse judgements. The introduction of new legislation
is an opportunity to deal with this inappropriate section.
Finally we reiterate that we welcome much that
is in the bill. It will undoubtedly help disabled people at work.
Our proposals are made with the intention of strengthening the
law and making it work more effectively. These changes would go
some way to meeting the government objective of getting many more
disabled people into work.
February 2004
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