Memorandum from the National Union of
Teachers (DDB 72)
INTRODUCTION
1. The National Union of Teachers warmly
welcomes the draft Disability Discrimination Bill, which will
offer further long awaited rights to Britain's 8.6 million disabled
people. The National Union of Teachers considers that the need
for reform is urgent in order to make disability equality a reality.
2. The Disability Rights Commission has
recently made key recommendations following their review of the
DDA, a review which was the subject of extensive consultation
with stakeholders. The NUT strongly supports the following key
recommendations made by the Disability Rights Commission:
— The definition of disability should
be improved in connection with people with mental health problems
who experience a great deal of discrimination but have added difficulties
claiming protection under the DDA.
— All examining bodies, awarding bodies
and standard setting agencies should be covered (the exact parameters
of how far these bodies are covered is at present unclear).
— School governors should be covered.
This is important to enable disabled pupils and teachers to fully
participate in school and college life.
— Disability related enquiries before
a job is offered should be permitted only in very limited circumstances.
— Employment tribunals should be able
to order reinstatement or re-engagement under the employment provisions
of the DDA.
DISCRIMINATION BY
PUBLIC AUTHORITIES—SECTION
21D
3. At present, disabled people are protected
from discrimination in the areas of employment, education and
in the provision of goods, facilities and services. The NUT welcomes
the proposal to extend the areas of protection by making it unlawful
for a public authority to discriminate against a disabled person
in the way it carries out its functions. The disadvantage experienced
by the families, partners and care workers of disabled people
as a result of disability related discrimination should be recognised.
4. This new requirement should provide the
same level of protection and, so far as possible, should mirror
the approach already contained in the sections of the DDA which
relate to discrimination in relation to goods, facilities and
services. It is crucial that there is as much consistency across
the provisions of the DDA as possible.
5. The requirement that there must be a
very much less favourable outcome in the new functions clause
creates a very high threshold, which is not broadly comparable
to the threshold which applies to the delivery of public services,
ie, that the service is impossible or unreasonably difficult for
a disabled person to use. The NUT would be concerned to see this
inconsistency enshrined in the legislation: it will cause confusion
in practice.
6. The present drafting of the reasonable
adjustments duty in relation to a public authority carrying out
its functions fails to establish an anticipatory duty. The anticipatory
duty on service providers under Part 3 of the DDA and under Part
4 of the DDA has proved essential to promoting disabled peoples'
rights effectively and has proved to be a very important trigger
for change.
7. It is disappointing to note that the
Bill allows justification for discrimination on subjective rather
than objective grounds. Subsection (3) provides that treatment
or an outcome is justified if in the opinion of the public authority
one or more of the conditions specified in subsection (4) are
satisfied and the opinion is reasonably held. The NUT believes
that, if a public authority carries out its functions in a way
which puts disabled people at a substantial disadvantage, that
a justificatory defence should only be available to the public
authority if the authority is able to justify the actions on objective
grounds. It is inappropriate to establish subjective justification
in legislation which purports to eliminate discrimination.
DUTIES OF
PUBLIC AUTHORITIES
TO PROMOTE
DISABILITY EQUALITY—SECTION
49A
8. The NUT welcomes the duty to promote
disability equality for public authorities, in the manner contained
in the Race Relations Amendment Act 2000 (RRAA). The NUT believes
it is very important to move away from a system whereby individual
claimants need to take cases to employment tribunals to challenge
acts of discrimination in order to break down barriers. A duty
to promote disability equality for the public sector is central
to reducing disability discrimination and in breaking down institutional
barriers which exclude disabled people.
9. The NUT supports the Disability Rights
Commission in calling for the Government to be more specific about
what duties it intends to apply to public bodies and for the Government
to confirm that there will be parity in this respect with the
RRAA as follows:
— Key public sector bodies including
LEAs should be required to develop disability equality schemes
(along the lines of race equality schemes under the RRAA).
— A specific employment duty (along
the lines of the RRAA) should be placed on LEAs to monitor the
proportion of disabled people among their existing staff and to
monitor applications, promotion and training figures and to publish
the results every year.
— Specific duties should be applied
to schools and FE and HE institutions in line with RRAA requirements,
such as a duty to publish a disability equality scheme and a duty
to monitor and assess how their policies affect disabled students
and staff.
10. The NUT believes it is important that
the duty in the new Bill should not imply that pubic authorities
have any lesser duty under the DDA than under the RRAA. The Government
needs to make it clear that the issues tackled in relation to
race discrimination by public authorities have relevance for the
discrimination faced by disabled people.
11. The NUT believes that LEAs should be
encouraged to take on a greater role in promoting disability equality
within the school community and removing the barriers facing both
disabled staff and students. Disability equality must be positively
pursued across all policy development levels of each LEA.
TRANSPORT
12. The NUT welcomes the extension of the
DDA in the draft Bill to cover discrimination in relation to the
use of a means of transport, as opposed to transport infrastructure
as is currently covered.
13. It is essential that disabled people
have redress under the DDA if they suffer discrimination in relation
to the use of a means of transport. The 8.6 million disabled people
in Britain suffer discrimination in relation to the use of transport
daily. The NUT urges the Government to set out the intended timetable
for regulations to bring all different modes of transport into
coverage by Part 3 of the DDA such as taxis, private hire vehicles,
private rental car hire, trains, shipping, aviation and buses.
14. The Government must deliver enforceable
rights for disabled people in the field of transport if it wants
to develop a fully inclusive transport system and to build an
environment which is accessible to all.
MEANING OF
DISABILITY
15. The NUT welcomes the proposal to extend
the protection afforded to those with cancer, HIV and multiple
sclerosis under the DDA so that in future, people with these conditions
will be deemed disabled without having to demonstrate that the
condition has had an adverse impact on their ability to carry
out normal day-to-day activities.
16. Whilst this is welcome, the NUT is concerned
that those with progressive conditions not automatically covered
by the DDA will continue to face the unreasonable barrier posed
by the requirement to prove that they can claim protection under
the DDA. It is not justifiable to subject people who have a progressive
condition covered by the DDA to the additional barrier of having
to show that their impairment has had a negative impact on their
daily activities.
17. The NUT has represented teachers with
progressive conditions who, although clearly discriminated against,
were unable to pursue claims under the DDA because of this requirement.
The NUT believes it is the discriminatory treatment to which disabled
people are subjected that should be the focus of disability discrimination
legislation and not the effects of their impairment. The draft
Bill should extend automatic protection to a wider class of progressive
conditions, therefore, not just those mentioned in the draft Bill
at present.
18. The NUT hopes the Joint Committee will
urge the Government to extend protection under the DDA wider still
to include a greater number of people with mental health problems.
A mental illness is recognised as a disability only if it is clinically
well recognised. As a result, it is practically impossible for
people with atypical or rare forms of mental illness to exercise
their rights under the DDA.
19. The current list of normal "day-to-day"
activities included in the DDA acts as a further barrier to people
with mental health illness. There is a predominance of physical
activities covered by the current list. The kind of activities
most likely to be affected by mental illness, however, involves
cognitive and emotional responses. Equality of outcome for all
disabled people can only be delivered by the disability discrimination
legislation in its current form if the list of day activities
involves: the perception of reality; behaviour; communication
and judgement. The narrow definition of "mental impairment"
also reaffirms the common stereotypical assumption that disabled
people are a homogeneous group with physical impairments.
EXAMINING BOARDS
AND STANDARD
SETTING AGENCIES
20. The NUT believes it is critical for
examination bodies to be explicitly covered by the legislation
in the same way in which education providers and qualification
bodies are currently covered. This is essential to achieving equality
for disabled students in educational attainment and contribution
to school and college life.
21. The arrangements relating to examinations
which are under the control of schools, LEAs or further or higher
education institutions currently fall within the provisions of
the new Part 4 of the DDA, but examining bodies do not.
22. In 2003, the Government introduced the
Disability Discrimination Act 1995 (Amendment) Regulations in
order to extend the provisions of the DDA to cover awarding bodies
which devise and award trade qualifications which are directly
employment related eg specific occupational qualifications. The
unitary awarding bodies eg Edexcel AQA and OCR which award GCSEs
and A levels do not fall within the terms of the regulations because
GCSEs and A levels are not professional or trade qualifications.
In order that this situation is clarified, the NUT believes it
is critical that awarding bodies are explicitly covered by the
new Bill.
23. The NUT is also concerned that current
arrangements for disabled students to take and pass examinations
are inadequate in practice for safeguarding the rights of disabled
students. Although regulations and guidance on adjustments for
disabled students have been issued by the joint council for general
qualifications bodies, the Disability Rights Commission has expressed
concern that this guidance is not legally binding.
24. The Disability Rights Commission has
collated evidence which shows that disabled students have difficulty
accessing and taking examinations due to the behaviour of examination
boards, for example in relation to visually impaired students.
Such discriminatory provision cannot currently be challenged under
the DDA. There is a gap in the legislation in respect of both
examining bodies and standard setting agencies and the NUT urges
the Government to take this opportunity to establish coverage
in respect of examinations so that disabled students are not at
an unfair disadvantage and can progress in their chosen area of
work or study.
ADDITIONAL AREAS
THE BILL
SHOULD COVER
25. The NUT believes that the Bill should
prohibit disability related enquiries before a job is offered
except in very limited circumstances. Disabled workers are still
routinely asked medical questions prior to job interview and are
discouraged by questions from even proceeding with their application.
It is important that the new Bill should prohibit discriminatory
questions prior to job selection in order to achieve greater employment
equality and to get more disabled teachers into the profession,
to stay in the profession and to get on within the profession.
26. The NUT supports the Disability Rights
Commission's recommendation that the Bill should automatically
allow applicants in receipt of specified State disability benefits
to be deemed disabled.
CONCLUSION
27. A research report, "Teachers"
Careers: the impact of age, disability, ethnicity, gender and
sexual orientation', published by the University of Glasgow and
Middlesex University in October 2003 found that disabled teachers
overwhelmingly report that disability has affected their career
progression. Most respondents who were disabled teachers reported
experiencing difficulties both in entering and in making progress
in the teaching profession.
28. When asked to suggest ways in which
equality of opportunities for teachers' careers could be improved,
respondents called for increasing disability equality training
among governors and appointment panels. A lack of consideration
about the barriers facing disabled teachers was cited in the study
as a continuing inhibitor to development opportunities for disabled
teachers.
29. Disabled teachers were more likely than
other groups to think about leaving the profession and the teachers
interviewed said that this was largely because of the stress incurred
by coping with their disability while facing, what they perceive
to be, a lack of awareness by their colleagues and insufficient
adaptation of their teaching environment.
30. The experience of the NUT suggests that
in order to ensure that the barriers faced by disabled teachers
are removed, it is important that the Government should ensure
that governors are made aware of how to safeguard equality of
opportunity for disabled teachers. The NUT hopes the Joint Committee
will urge the Government to extend the scope of the DDA to governors;
to their appointment and training; and to the exercise of their
duties.
February 2004
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