Memorandum from NATFHE, the University
and College Lecturers' Union (DDB 49)
NATFHE welcomes the publication of this Bill,
and believes that it goes some way to improving on the current
Disability Discrimination Act. [DDA].
Entirely welcome is the extension of the definition
of disability to explicitly include people with HIV, cancer and
multiple sclerosis from the point of diagnosis [clause 12].
This does not however address the problem of
the narrow interpretation of mental health disabilities that exists
under the DDA. "Clinically well-recognised" illnesses
that last for at least twelve months goes nowhere towards recognising
the host of stress-related illnesses and recurrent conditions
that exist, and the definition of disability needs to be extended
accordingly.
Also very welcome is Clause 8, which creates
a public sector duty to promote equality of opportunity for disabled
persons. This is likely to be the most significant feature of
the Bill, and has the potential to create the positive momentum
for change brought about by the Race Relations Amendment Act.
[RRRA] However that Act laid down a positive duty to promote good
relations between people of different races and a parallel duty
does not appear in the Bill, which instead calls for "improving
opportunities for disabled people", a much weaker concept.
The positive duty is something that should apply
to both public and private bodies, and to all employers. There
is no reason why it should be restricted to public authorities.
If the positive duty does remain restricted
to public authorities, then there should be a list of all those
covered by the duty, as set out in the RRRA.
We welcome the extension of coverage to new
groups of workers, but think it should also be extended to cover
volunteers, as voluntary work is a route by which many disabled
people return to the workforce.
Those perceived to be disabled, even if they
are not, should also be covered.
The fact that the transport provisions, welcome
in themselves, are to be introduced by Regulation, is disturbing.
At the least, a clear timetable is needed, setting out when the
various regulations will come into force.
The major concerns with the Bill are the areas
on which it is silent.
It makes no move at all to move the DDA away
from the medical and towards the social model of disability.
The range of day-to-day activities used to define
whether a person is disabled or not are not changed, yet these
do not reflect at all the day-to-day problems faced by people
with psychiatric illness.
Disability leave has not been added to the list
of reasonable adjustments that an employer should consider.
There is an anticipatory duty in the parts of
the DDA relating to goods and services, and education. A new clause
is required which sets out a new duty on all employers, public
and private sector, to anticipate what is needed to make their
workplaces accessible to potential staff.
The issue of "justification" is still
left very clouded. We would prefer that the ability of an employer
to justify an act of discrimination should be removed altogether.
Much greater clarity on what is intended is needed.
The use of the terms "reasonable person"
and "reasonable argument" still remains in the clauses
relating to tribunal cases. This does not allow at all for the
prejudices and stereotypes that are so commonly held about disabled
people.
The triggers at which a person is deemed to
have been illegally discriminated against are not consistent throughout
the DDA. Wording in the Bill might even be taken to worsen the
situation by using expressions such as "very much less favourable"
outcomes. This presents a very high barrier to taking a case to
Tribunal. There is a need to establish a common standard throughout
the DDA, which does not put enormous barriers in the way of disabled
people hoping to take a case.
Lastly, NATFHE has a particular concern that
not all examination bodies and standard setting bodies are covered
by the Bill, and they need to be.
In general, the Bill contains some useful advances,
but this opportunity should be taken to take many more steps in
the direction of full civil rights for disabled people.
[NATFHE represents 66,000 lecturers in adult,
further and higher education]
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