Memorandum from the Northern TUC (DDB
53)
1. BACKGROUND
1.1 The Northern TUC Disability Forum brings
together trade unionists from within the TUC's Northern Region
who have an interest in raising awareness of the importance of
mainstreaming disability rights within all areas of employment
and in every aspect of public policy. The Forum provides crucial
guidance and advice on how the Northern TUC should lead by example
and set benchmarks within its own structures and activity. Members
of the Forum, drawn from trade unions and trades councils, already
play an active role within their own organisations on disability
matters. The Forum works closely with the TUC's Disability Committee.
1.2 The Northern TUC Disability Forum welcomes
the Disability Discrimination Bill and supports its quick introduction.
The Bill should rectify many of the problems contained within
the DDA. However, the Bill could be strengthened by:
— Extending the definition of disability.
— Strengthening of the definition surrounding
what is a public duty.
— Extending the coverage of the DDA.
— Creating specific deadlines in which
to implement transport provisions.
— Adding further clauses covering reinstatement,
disability-related questions, disability leave, creation of anticipatory
duty, and justification of discrimination.
2. MAIN COMMENTS
2.1 The Bill should complete the steps promised
by the Government in its response to the Disability Rights Task
Force (DRTF). It should address other existing problems within
the DDA in order to achieve full equal rights for disabled people.
The Northern TUC believes that a number of improvements could
be made to areas covered by the Bill, particularly in the area
of employment.
2.2 The Northern TUC believes the Government
should introduce the Bill in the current session of Parliament,
with provisions coming into force with immediate effect.
2.3 The Northern TUC supports the social
definition of disability. The widest definition should be embraced
and we echo our national TUC colleagues in proposing that:
2.3(a)
The coverage proposed of people with named progressive
conditions should be amended to cover anyone with a progressive
condition, as urged by the DRC.
2.3(b)
Courts and tribunals have taken literally two
problematic aspects of the definition of mental disability: having
to be "clinically well recognised", and to have lasted
for at least twelve months. Stress-related illnesses are a serious,
and rapidly increasing, problem, but many employers avoid liability
under the DDA by arguing that employees failed the eligibility
test on one or both grounds. Medical criteria based on existing
lists of conditions may be out of date when it comes to recognising
mental health problems such as those caused by stress. Problems
such as depression are often recurrent, especially if the cause
is not addressed, but may not last for a continuous period of
twelve months. This does not make them less real. The Bill should
remove the first restriction and reduce the second to six months
for depression.
2.3(c)
The DDA list of "normal day to day activities"
should be revised to include the ability to communicate with others,
and to cover self-harming behaviour, both issues relevant in mental
illnesses.
2.3(d)
Anyone in receipt of a disability benefit should
be automatically included within the definition of disability.
2.3(e)
The Bill fails to address the issue of discrimination
on grounds of "genetic predisposition" to a condition,
which should be covered explicitly by the law.
2.4 The creation of a public duty to promote
equality of opportunity and eliminate discrimination is a positive
development. However, the Government could make the obligation
more effective by:
2.4(a) Including a duty on public authorities
to promote good relations.
2.4(b) Applying the duty to both public authorities
and private bodies.
2.4(c) Providing further clarity as to what
constitutes a public authority.
2.5 Proposals that extend the coverage of
the DDA to new groups of workers are welcome. The Northern TUC
supports the extension of the law to cover those individuals working
as volunteers, which can help gain paid employment. Such an extension
would further assist the Government's key objective of getting
more disabled people into work.
2.6 The DDA should offer protection to anyone
perceived as disabled, whether or not they actually are disabled
as defined by the DDA. Anyone associated with a disabled person
(eg a carer) should also be covered.
2.7 The Government should bring all forms
of transport within the regulations, and publish a date for its
implementation.
2.8 Tribunals should have the power to recommend
or order an employer found to have discriminated under the DDA
to reinstate or re-engage the disabled person. The Government
itself has illustrated how difficult it is for a very large proportion
of disabled people who wish to work to obtain employment. Research
finds that disabled people find it more difficult to enter the
labour market than those individuals without some form of disability.
2.9 The DRTF recommended that questions
about a job applicant's disability should only be permitted before
a job is offered to establish whether reasonable adjustments would
be needed in the recruitment process, or whether they would be
required to carry out the job itself. Otherwise, they should only
be permitted after a job had actually been offered. It is difficult
to demonstrate discrimination during recruitment, and the difficulty
in raising the employment rate of disabled people suggests that
discrimination is a significant contributory factor. The government
refused to adopt this recommendation for fear that employers would
be caught out by inadvertently "asking the wrong question."
2.10 The proposed changes should be explained
fully to all employers. The level of ignorance among employers
generally about the provisions of the DDA has been found to be
widespread. A campaign of information about all the provisions
of the law is needed, in particular for small employers whose
exemption ends in October 2004.
2.11 Disability leave should be promoted
as a reasonable adjustment by employers to enable workers who
acquire an impairment, or whose condition changes, to be allowed
time to adjust without fear of losing their employment. The idea
was advanced by the RNIB, piloted immediately prior to the DDA,
and a number of unions reported its successful adoption negotiated
with various employers. The DRTF recommended that the government
give greater emphasis to this adjustment in its published guidance.
The DDA should reflect this by including disability leave in its
list of suggested reasonable adjustments.
2.12 The DDA already contains an anticipatory
duty on service providers. The Northern TUC supports the DRC's
submission that this should be extended to the employment provisions.
There are many barriers to disabled people finding employment,
but the duty on an employer to make adjustments arises only with
regard to individual employees. The absence of an anticipatory
duty impacts on the recruitment process, and in the provision
of training, with serious effects on the ability of disabled people
to access employment in the first place, or to develop careers
having obtained employment.
2.13 The new duty on public authorities
may have the effect of an anticipatory duty when it comes to planning
for the recognition of the inclusion of disabled people in the
functions of those authorities. Clarification that the duty applied
to all public functions carried out by any body would be welcomed,
but a new clause is needed that creates a duty on all employers
to consider what adjustments are needed to their premises, work
practices (etc) in general, rather than wait for a particular
disabled person to apply for a position who requires a particular
adjustment to be made.
2.14 The TUC has argued that the ability
of an employer to justify their act of discrimination was wrong
and was not a requirement in other acts of discrimination. The
important changes made to the applicability of this form of defence
by the European Employment Directive as transposed into UK law
are recognised, but still await clarification. The Bill presents
an opportunity for the Government to provide the necessary clarity.
2.15 The right of a tribunal or court to
take into account what a "reasonable person" might think
in determining whether an employer's action in a disability discrimination
case might be justifiable has led to some perverse conclusions.
There is no such thing as an abstract "reasonable" person:
everyone has their own prejudices and stereotypes, popular misconceptions
about disabled people being particularly common. Although a tribunal
or court is usually able to distinguish between reason and prejudice,
to be able to call such a view in successful defence of a discriminatory
action defeats the purpose of the law. The Bill presents an opportunity
to rectify this problem.
2.16 Different thresholds exist for allowing
justification for discrimination or triggering the duty to make
adjustments in the provisions covering employment, goods and services
and now public functions. There should be a common, objective
standard with the lowest threshold (ie "serious disadvantage")
across the board.
February 2004
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