Memorandum from UNISON (DDB 76)
1. INTRODUCTION
UNISON policy has long been that the Disability
Discrimination Act is fundamentally flawed and hundreds of thousands
of disabled people could fall outside its protective measures.
Our experience shows the difficulty disabled people encounter
in challenging discriminatory acts as well as the difficulty employers
have in understanding the extent to which they have duties under
the Law. Our workplace representatives have had successful negotiations
in securing reasonable adjustments, but it should be noted that
their reports express concerns regarding the complicated hurdles
they have to take our disabled members through in addressing disability
discrimination.
We welcome the Government's initiative to extend
provisions in a number of areas as set out in the Draft Disability
Discrimination Bill, however, we are concerned that much more
legislative reform will be required in order that disabled people
can be comprehensively protected from discriminatory actions.
We are concerned with all aspects of discrimination
against disabled people and although this submission largely focuses
upon employment issues; we would be pleased to present further
submissions to the Joint Committee in relation to service provision
and trade organisation duties in due course.
2. THE DEFINITION
OF A
DISABLED PERSON
Initiatives to extend the definition of a disabled
person and subsequent protection are of course welcome. We support
the Disability Rights Commission recommendation that all those
in receipt of disability related benefits should be considered
eligible for protection from discrimination. However, we have
concerns that a piecemeal approach rather that a complete overhaul
of the definition itself may result in a number of problems:
— A significant number of disabled
people will continue to fall outside legal protection;
— The changes could lead to a new apartheid
of disabled people; creating a hierarchy of exclusion with some
Disabled people enjoying some rights whilst others remain exposed
to variable degrees of exclusion, poverty and discrimination;
— There appears to be no initiative
to provide support to those people diagnosed with particular conditions
such as HIV, cancer and Multiple Sclerosis during the process
of coping with the new identification as a disabled person. Provision
should be made within the public sector for advisors support and
guide newly disabled people about the extent to which they are
protected under;
— Potentially increased confusion by
all parties who have duties under the Law about which disabled
people they should take into consideration in anti discrimination
measures; and
— Regression to similarities with the
previous "Quota Scheme", where in some cases, having
an identifiable impairment can be a gateway to limited protections
for a minority, yet for others, multitudes of barriers which prevent
equality.
We continue to believe that the definition should
be based on the Social Model of Disability and that in common
with other forms of anti discrimination legislation, the alleged
act of discrimination should clarify a person's status as a disabled
or non-disabled person.
3. EXTENSION
OF OCCUPATIONAL
PROVISION
We welcome the abolition of exemptions this
year in the prison, police and fire services. However, there is
growing concern amongst our members who work in related fields
that their employers have no intention to increase resources available
to accommodate new reasonable adjustment requirements, but that
they in fact will dilute existing resources in order to meet new
duties.
The extension of occupations to be covered by
the DDA will inevitably attract new demand on existing government
resources; we suggest that a review of services to disabled people
is undertaken to respond to the increase in potential users. We
are aware of a number of our members who have waited a considerable
period of time for adjustments to be made; we would not want this
situation to be exacerbated and our members jobs be put at further
risk.
As well as additional financial and practical
support, new guidance will be required in order that all disabled
workers in these fields have access to employer and government
sponsored schemes and in order that employers can get to grips
with their additional duties without detriment to disabled workers
already covered by the Act.
Volunteering and gaining work experience can
be a valuable tool in the transition from unemployment and poverty
to economic independence and social integration. We hope the Joint
Committee will give consideration to extending provision to volunteers
and make appropriate increased financial and practical resources
to support disabled volunteers in the search for work.
4. NEW PUBLIC
SECTOR DUTIES
As the largest union organising across public
services, we wholeheartedly welcome the proposal in the Draft
Bill to introduce a public sector duty to promote equality of
opportunity, eliminate unlawful discrimination and harassment.
We believe this should open up greater employment opportunities
and result in more equitable service delivery, but urge the Joint
Committee to consider broadening these duties to promote good
relations, similar to provision in the Race Relations (Amendment)
Act.
It is disappointing that similar duties are
not being constructed for the private sector. Evidence of privatisation
has shown that disabled people fare less well and experience a
disproportionately higher incidence of disability discrimination
in the private sector.
A small number of our branches organising in
the private sector have reported locally agreed non-discrimination
policies that could have a significant bearing on the future rights
of disabled people. These have been agreed on the basis that it
is in the private employer's interest to assume a moral responsibility
towards the needs of the local community and its workforce in
respect of the physical built environment and other features related
to disabled people's access needs.
5. TRANSPORT
Inaccessible transport continues to present
one of the greatest barriers to disabled people's rights in employment
and society generally. We welcome initiatives to extend provision
to vehicles but would add that attention needs to be given to
address the inadequate provisions that result in inconsistencies
geographically and by service providers.
Our members are calling for the introduction
of a single travel card that offers consistent concessions regardless
of postcode or mode of transportation and one that imposes no
restrictions on travel periods. Concessions that are only available
outside rush hour result in fewer employment opportunities in
full time work and can result in reduced personal income and independence.
6. HOUSING
It is regrettable that housing has not been
incorporated into the proposed Bill. Housing is a significant
factor when considering disabled people's employment prospects.
We are aware of a number of our disabled members who have had
to forfeit career opportunities due to inadequate levels of accessible
accommodation in the public and private sectors. We hope the Joint
Committee will take housing into consideration when it reviews
proposed legislation.
7. PUBLIC BODIES
We welcome the proposal to extend protections
to office holders such as elected councillors and those serving
on the board of NHS Trusts as this should form a significant shift
in public perceptions about disabled people as valid contributors
to local social policy and health matters.
We are disappointed that similar provisions
are not included in respect of other public positions especially
in school governing bodies. Some progress has been made with the
introduction of SENDA and we believe that it is an obvious anomaly
to not have made provision in order that disabled people can be
involved in shaping education provision for disabled people, we
urge the Joint Committee to consider this.
8. EMPLOYMENT
We are concerned that disabled people continue
to experience extraordinarily high levels of long term unemployment.
In particular, they may face disadvantage within the recruitment
and selection process. The Draft Bill makes no provision for Tribunals
to order reinstatement in cases where claims have been upheld;
the Joint Committee is urged to give consideration to strengthening
disabled people's rights at work by creating opportunities for
Tribunals to order employers to reinstate or re-engage disabled
workers.
Monitoring workers disability status remains
a controversial issue as it can be a weapon to be used effectively
to discriminate against disabled people or as a tool to help those
with duties under the Law to be confident that they have taken
adequate measures to address discriminatory policies and practices.
We urge the Joint Committee to give specific
consideration to the issue of monitoring as this is a vital component
in the fight for disabled people's rights. Our view is that monitoring
should be for the purpose of making reasonable adjustments in
all aspects of the recruitment, training and selection of staff
and that it should not be based on people's impairments but should
reflect the access requirements of disabled people. We suggest
that in order for employers, service providers and trade organisations
to be confident that their systems and procedures are discrimination
free, the Joint Committee should introduce a new clause to address
monitoring issues.
Employers are currently guided to make provision
for some work related absence such as time off for rehabilitation
or some forms of treatment. Absence from the workplace as a result
of disability can have a detrimental effect on disabled people's
employment opportunities, career progression and economic independence.
Sickness absence procedures are often used as a reason to take
punitive measures even though disabled people may not actually
be sick. Bonus payment schemes often fail to include adjustments
where factors such as attendance and output measures are critical
to remuneration.
We strongly urge the Joint Committee to give
consideration to introducing a new clause to make provision for
Disability Leave to take account of absences that are strictly
related to individual need. We suggest this should be considered
in the context of work life balance and be extended to include:
— Periods of absence whilst adjustments
are being carried out to the workplace built environment, or the
services required in order for the disabled person to carry out
their duties;
— When mobility difficulties are caused
by inclement weather;
— Necessary appointments in relation
to benefit applications; and
— Provision for necessary adaptations
to the disabled person's home, especially in the case of geographic
relocation.
Anticipatory duties should be extended to employers.
We believe that employers may often fall foul of their duties
because they have not been required to give advance consideration
to the barriers that exist within the workplace or its associated
policies or procedures. The disadvantages to this are three fold;
employers are wasting valuable resources in addressing disability
discrimination on an individual basis, trade union representatives
are needlessly negotiating and renegotiating adjustments and,
disabled people have become isolated, vulnerable individuals in
their attempts to challenge systemic discrimination at work.
The introduction of anticipatory duties could
generate a collaborative model of partnership working to the common
goal of eliminating disability discrimination by involving disabled
people, their trade unions and employers.
New anticipatory duties will need some safeguards
if they are to enjoy success. Employers, trade union representatives
and disabled people themselves may be victims of a growing number
of exploitative business concerns that are designed for greedy
profit rather than assisting employers to meet their duties or
to support disabled people's rights at work. We suggest that the
Joint Committee considers evidence in the first instance about
the standards used in auditing premises, the production of braille
services and the provision of sign language interpreting.
We believe that some submissions to the Joint
Committee may welcome initiatives to extend protection to those
who are perceived to be disabled people but who in fact are non-disabled.
Whilst we would hope to see improvements across all equality legislation
with a harmonised approach to tackle all forms of exclusion, we
suggest that the Joint Committee recognises that extending provision
in this direction is meaningless and unworkable within the framework
of existing legislation. It is in fact a nonsense to suggest that
non-disabled people can experience disability discrimination.
9. JUSTIFIABLE
DISCRIMINATION
UNISON has long held concerns that the DDA legalises
discrimination against disabled people. We believe that the new
distinction between indirect and direct discrimination will go
some way to alleviate the extent of discrimination as well as
offer an opportunity to harmonise equality legislation in the
UK.
We understand that it will be for Tribunals
to determine what a "reasonable person" would find as
"justified" discrimination but we have grave concerns
about what tools Tribunal members will be able to rely upon in
making their decisions. UNISON Disabled members suggest that the
Joint Committee gives consideration to actions that could increase
the number of disabled people serving on Tribunal panels and that
attendance for all panel members on Disability Equality and Deaf
Equality Training courses is compulsory.
February 2004
| 
