Memorandum from UnumProvident Ltd (DDB
87)
EXECUTIVE SUMMARY
UnumProvident is the UK's leading income protection
insurer. At the end of 2003 in the UK it protected approximately
1.34 million lives and paid benefits to people with disabilities
and other health-related conditions totalling some £178 million.
Any new legislation should support sick and
disabled people in finding and staying in work, as employment
is one of the best ways of ensuring independence and choice.
We welcome the inclusion of MS, cancer and HIV
but would like to see the Draft Bill also focus on mental health—an
increasing source of disability in the workplace.
We would like to see the Draft Bill give greater
clarity to definitions of disability to aid effective delivery
of workplace reasonable adjustments.
We are pleased to see the Draft legislation
has addressed the use of transport—and private vehicles
in particular.
We would like to see the Government provide
a commitment towards substantial funding of communications to
employers on the extension of the current DDA and any new legislation.
We would like to see further clarity on the
duties of public bodies.
The Draft Bill should address the issue of disability
and the employment application process.
The Bill should do nothing to reduce the availability
of group (workplace) insurance.
We would like to see any draft legislation passed
before any forthcoming General Election.
A. INTRODUCTION
UnumProvident has been operating in the UK for
over 30 years, and is the UK's leading provider of income protection
insurance. At the end of 2002 in the UK alone, it protected over
905,000 lives and paid benefits to people with disabilities and
other health-related conditions totalling some £133 million.
From our perspective a key route to the enrichment
of disabled peoples life chances is firstly through getting them
into employment and then by retaining them in the workforce. Our
view is that exposure to the diverse economic and societal benefits
that occupation can bring is a natural and easy way for people
with disabilities to really fulfil themselves and also to access
the status and self-esteem opportunities that all non-disabled
people typically take for granted. For it is important to remember
that acquiring or developing a disability does not necessarily
make a person incapable of work. In UnumProvident's experience,
most disabled people are capable of some work, would like to work
and, crucially, have an expectation that they will return
to work in some capacity.
Consequently we believe that there is much more
that could be done. There are a number of issues that are absolutely
key in terms of helping disabled people (a) to find suitable work
in the first place, (b) to be in a position—financially
and practically—to take up that employment and (c) to be
retained in that employment over a period of time. In order to
have a significant impact on return to work outcomes for disabled
people, government policies must be holistic, addressing both
the demand for disabled workers from both employers and the economy
as a whole, as well as the supply side of disabled people offering
themselves for work.
The publication of the Draft Disability Bill
is very timely, for, together with the forthcoming extension of
the Disability Discrimination act and the setting up of a single
equality commission, it should provide all interested parties
with a platform to propose meaningful ways forward into work for
disabled and non-disabled people alike. And thus give flesh to
the Government's guiding principle for welfare reform, namely
"work for those who can, and security for those who cannot".
We would welcome the opportunity to discuss
our work with the Scrutiny Committee in greater detail and/or
to provide any additional information or evidence that the Committee
might feel pertinent to its work and analysis programme.
B. RESPONSE
1.1 UnumProvident welcomes the principles
behind the draft Disability Discrimination Bill which seeks to
increase opportunities and choice for disabled people in all areas
of life. It further builds on the extension due to take effect
in October 2004 of the duties in the Disability Discrimination
Act (DDA) concerning service providers, and the major changes
to the employment and training provisions of the DDA, including
ending the current exemption of small firms. We also greet positively
the further measures envisaged within the draft Bill which extend
and strengthen disabled people's rights and place significant
new duties on public bodies, transport operators and many others.
1.2 We welcome the inclusion of MS, cancer
(see 1.3) and HIV in terms of defined conditions of disability
but would like to see the Bill give a clear focus to the issue
of mental health—an increasing source of disability in the
workplace. Currently the definition of disability within the DDA
requires that to comply the disability must be severe enough to
"have a substantial and long term adverse effect on his ability
to carry out normal day-to-day activities." An issue here
is the fact "the normal day-to-day activities" relate
predominately to physical rather than mental impairments. Thus
a number of conditions such as depression are excluded. The problem
faced by people with depression is that there may be several episodes
over a relatively short period, but no episode lasts for 12 months
and depressive illnesses also have a strong tendency to reoccur.
We would like to see the Bill address this issue with key support
being made available for both for companies and employees.
1.3 In terms of the wider definition of
disability we have some concerns about a condition-by-condition
approach to the definition of disability with lists of individual
conditions being covered seemingly on an incremental basis. (Cancer
for example is a generic non-medical term which covers a wide
range of carcinomas, the site of which will be congruent with
varying degrees of symptoms and severity, which in turn leads
to very different consequent degrees of disability, treatment
costs and long-term rehabilitation implications. Eg to place basal
cell, pancreatic, colo-rectal, prostate and breast carcinoma,
each with their varying prognoses, within a single all-inclusive
definition will surely lead to problems in the future. While it
may be difficult, the search for a comprehensive definition of
disability that covers all relevant conditions should in our view
not be abandoned. We would also like the Bill to support greater
clarity in definitions of disability to aid the effective delivery
of workplace reasonable adjustments.
1.4 We are pleased the Bill addresses the
issue of transport on private vehicles and on road and rail vehicle
accessibility, although the timescales for this appear very lengthy
ie 2025. We would also want to see greater clarity of powers for
local enforcement of the legislation.
1.5 It is our experience that there is a
lot of misunderstanding and ignorance, both amongst consumers
and employers, about the scope and scale of existing disability
ant-discriminatory legislation and we ask the Government to set
aside sufficient resources to provide an extensive communications
campaign to explain the changes envisaged by both the new Bill
and the forthcoming DDA extension in the Autumn.
1.6 The recent addition of a new clause
extending protection for local councillors, in a way that is similar
to the protection that local government officers receive, is reassuring
but we still have some concerns about the precise duties owed
to disabled people by public authorities and would seek further
clarification on this point.
1.7 When the DDA came into force the reasonable
opinion test existed to allow for smaller service providers who
might not neither have the expertise in-house nor have easy access
to information. We hope that "reasonableness" test will
continue to apply within the application of this bill.
1.8 The bill remains silent on the issue
of disability extent raised at the point of application. It is
not clear therefore to what extent employers can reasonably seek
information from potential employees as to their status in terms
of, for example, the potential necessity to make enquiries about
the need for reasonable adjustments either at interview or in
the job. There is obviously potential for unnecessary intrusion
here but in cases where the applicant otherwise meets the requirements
of the job description, we would not like questions about medical
records, that are relevant to conducting of a fair recruitment
process, arbitrarily banned from appearing on an application form
without further consultation and debate.
1.9 We have some concerns about the provisions
in the bill regarding group Insurance [Sections 12 & 21 of
the Schedule]. Our reading of this is that, in essence, the Current
provisions in the DDA are being repealed and group insurance will
be treated like other insurances ie on an "objective justification"
basis. Our fear here is that there will be more instances where
group insurance providers, such as ourselves, could be prone to
a discrimination charge. This is because the current regulations
state that the insurer (as opposed to the employer) can only be
held responsible where they carry out all decisions relating to
eligibility for, and amounts of, benefits etc. The new provisions
appear to remove this protection for the insurer. Whilst it is
right that insurers should be held accountable for any discriminatory
decisions they make, they should not be held liable for decisions
taken by the employer that are wholly beyond the insurer's control.
This principle was recognised by the DRTF in their report "From
Exclusion to Inclusion" [January 2000] and also by the DWP
in draft legislation on disability intended to implement the Employment
Directive, although it was subsequently decided that insurance
was outside the scope of the Directive. We would have hoped that
a suitable form of words to this effect could be included in the
Explanatory Notes to the Bill to this effect and would be prepared
to be of assistance in drafting this. There may also be some schemes
where decisions are effectively taken jointly by the employer
and the insurer. Under the proposed bill it will be possible to
hold the insurer jointly liable, so should the bill in its present
form reach the statute book, then insurers may be required to
re-appraise their relationship with the employer and could seek
more control over some decisions that are traditionally exclusively
the domain of the employer.
1.10 We hope the Government will ensure
that the Bill becomes law before the next General Election and
where regulations are necessary we hope the Government publishes
draft regulations as soon as possible.
February 2004
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