HOUSE OF LORDS

House of COMMONS

MINUTES OF EVIDENCE

TAKEN BEFORE

JOINT COMMITTEE ON THE DRAFT DISABILITY DISCRIMINATION BILL

 

 

Draft Disability Discrimination Bill

 

 

Tuesday 23 March 2004

MR COLIN WILLMAN and MR STEPHEN ALAMBRITIS

MR PETER PURTON, MS SARAH VEALE and MS NICHOLA DANDRIDGE

Evidence heard in Public Questions 411 - 495

 

 

USE OF THE TRANSCRIPT

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Oral Evidence

Taken before the Joint Draft Disability Discrimination Bill

on Tuesday 23 March 2004

Members present:

Addington, L Carter, L (Chairman) Rix, L Swinfen, L Wilkins, B

Tom Levitt Mr Roger Williams

________________

Memorandum submitted by Federation of Small Businesses

 

Examination of Witnesses

 

Witnesses: Mr Colin Willman, National Councillor and Mr Stephen Alambritis, Head of Parliamentary Affairs, Federation of Small Businesses, examined.

Q411 Chairman: Good afternoon, thank you very much for coming in. You should have seen the note of the relevant interests of the Members of the Committee - those interests which are relevant to this Inquiry. We are being web-cast, so would you be kind enough to start by introducing yourselves so that those who can hear you but not see you know who you are?

Mr Alambritis: Thank you, my Lord Chairman. My name is Stephen Alambritis, I am the Head of Parliamentary Affairs to the Federation of Small Businesses. I was formerly on the Better Regulation Task Force and, more pertinently to this Inquiry, I was a Member of the Disability Rights Task Force.

Mr Willman: I am Colin Willman, National Councillor for the Federation, in our daytime business helping disabled people get into work by setting up their own businesses.

Q412 Chairman: If I can start with the first question: the Government puts the number of disabled people under the current definition of disability at 8.5 million. In your paper you suggest 8.7 million and other research has suggested an even higher figure. Do you think that the definition which is covering this number of people is too wide, too narrow or about right?

Mr Alambritis: We think it is about right. When I was on the Disability Rights Task Force we were talking around - and that was about five years ago - the 8 million mark. The definition of disabled of disabled people does need to be stable, certain and final, so that it helps us all, so we would look to the Bill you are currently looking at to arrive at a final definition which would increase the numbers of disabled people, but we are content with the 8.5 or 8.7 million.

Q413 Chairman: We have some questions later on the subject of the definition. Mr Willman, do you want to add to that?

Mr Willman: No, I agree with that.

Q414 Baroness Wilkins: We have had a large amount of evidence calling for extensions to the current definition of disability. These largely focus on people who are less likely to show physical symptoms - people with progressive conditions or with mental health problems; progressive conditions like cancer, which do not show in the first stages. Would improved coverage of groups like this cause your members any specific problems as employers or service providers?

Mr Alambritis: Certainly it has been the case that employers over the years are familiar with disabled people who have a physical nature in the disability. We would have no objection to looking at the definition to widen it to those where the physical nature is not obvious, provided that that list or that definition is final, is made well-known and is circularised amongst employers - large and small. They would not pose us any problems. What businesses, and small employers in particular, need is good definitions, certain definitions rather than allowing the law and the courts to come into play on who is or who is not a disabled person. We need to arrive at a definition that is inclusive and helpful to employers as well.

Mr Willman: The invisible disabilities are the ones that cause the most - heart attacks, where people have to adjust their lifestyles. is one that often gets missed. Those individuals do not always include themselves as disabled, but many of them are actually our members as well, running businesses.

Q415 Baroness Wilkins: When you say that it has got to be a clear definition, do you envisage that will specify conditions, or would you be happy with it stating that it was anybody with a progressive condition?

Mr Alambritis: We would like to see a definition that specifies; that is specific; that is prescriptive.

Q416 Baroness Wilkins: So what happens when other conditions emerge in future? How do you see a solution to that?

Mr Alambritis: That could be looked at as things arise. What employers need is certainty and finality. We would be very happy to look at the issue of definitions. What we think should happen is that employers get as much information as possible about definitions.

Q417 Lord Swinfen: Not all the disabilities will be immediately obvious. Do you think that employees should have a duty to let the employer know that they have a disability that is not obvious? Otherwise there could be unwitting discrimination.

Mr Willman: If people do not want to say what their disability is, I do not think they should be forced to, but they then should not later rely on that in court as being discriminated against, because if somebody is unaware of something they cannot wittingly discriminate against him, can they?

Q418 Chairman: It is a sort of a Catch 22, is it not, because a prospective employee might not wish to announce his disability for fear he will not get the job, but then if they do not and the employer genuinely does not know they were disabled then, presumably, they cannot discriminate. Is that how you would see it?

Mr Alambritis: On employment, on recruitment, we always advise our members to go for the best person for the job. As long as we have that ability on the part of employers - that employers are open-minded and go for the best person for the job that is in front of them - then both the potential recruit and the employer should be fine if they go according to that concept - gong for the best person for the job. The best person for the job could be or would be or should be or may be a disabled person, as long as the employer goes by that concept: the best person for the job.

Q419 Chairman: Do you advise your members that if a disabled person meets all the qualifications which are required for a job they will be guaranteed a interview? Lots of firms do this now.

Mr Alambritis: What we do with our members, in terms of advice, is give them access to free legal advice 24 hours a day on all aspects of employment plus all aspects of other parts of the legislation - commercial contracts. We answer 180,000 calls a year. Seventy thousand of those are on employment matters and they will get the legal advice that our lawyers can give, and it could be that they are beginning to give that kind of advice. What I can do for the Committee is get back to the lawyers and ask the question as to whether they are giving that advice that you are suggesting (or that you have heard of) and they will come back to me.

Q420 Chairman: It is a standard practice for lots in the public sector and the private sector.

Mr Alambritis: I am sure our lawyers would be advising accordingly, but I can confirm that.

Q421 Tom Levitt: Mr Willman, did I hear you say that someone who did not disclose a hidden disability at interview should not later rely on that knowledge being known and being protected?

Mr Willman: No, I said they should not rely on using it as being discriminated against because of it. If someone is not aware of it they cannot discriminate against it.

Q422 Tom Levitt: So as far as the employer is concerned, the person who did not disclose at interview but did disclose on the first day of employment would be in the same position as someone who did not disclose at interview and then was diagnosed with having a condition the following day?

Mr Willman: If they inform the employer at any time then the employer is aware of it.

Mr Alambritis: It is where the employer is never aware of the disability.

Mr Willman: I was actually thinking more of the employee who does not want to admit they have had a breakdown or they have suffered depression, thinking it may exclude them from the job.

Q423 Mr Williams: Speaking as someone who has been, in the past, and is probably still a small business employer and who, if we had somebody who was long-term sick, would find that a great burden to the business, if somebody came before me applying for a job and I used the criteria that you suggested - the best person for that job - and yet they had a progressive illness such as cancer, do you think it is reasonable I cannot take that into consideration in deciding who should have the job? They might be the best person for the job but because the long-term prospects are that they could have time off through illness, is it right or not right that I take that into consideration?

Mr Alambritis: It would be entirely up to you.

Q424 Mr Williams: Legally?

Mr Alambritis: Legally whether it is right to take that into consideration?

Q425 Mr Williams: That is what we are considering.

Mr Alambritis: There is a huge debate about rehabilitation; about getting people back into work and about moving away from GPs issuing sick certificates, moving it on to the occupational health service. So there is all that to take into account. I think it is entirely up to the employer, their reputational aspect and their position in the community, whether they want to reflect the community and the employees who service their customers to come from all walks of life. So it is entirely up to the conscience of that employer, I think, on that site. There was the huge debate about legislation protecting women and extending the rights of women who become pregnant, and there was the debate as to whether "Well, employers will no longer employ women of childbearing age if this legislation passes through". That has not happened and employers who go down that route will soon find that their staff is not reflecting the community which that business serves.

Q426 Lord Rix: The Association of British Insurers have commented that the wider definition of group insurance in Clause 2 of the draft Bill (which will cover all types of insurance schemes not just those related to the termination of service, retirement, old age or death, or accident or injury, sickness or invalidity) could cause confusion as to which arrangements fall within the scope of the Bill and which do not. What impact will the new definition of group insurance arrangements have on your members? In relation to the last question, could the difficulty or impossibility of getting insurance for the prospective employee be a convenient excuse or reason for not employing that disabled person?

Mr Willman: It will mean to our members, probably, higher insurance bills, full stop. As to whether it will encourage discrimination against individuals, it rather depends on whether insurance is necessary or legally required - as to whether that is a final decision. Everybody wants to be protected these days. If you are going to leave yourself open to a later claim it would be a swaying decision as to not to employ that person. You are not discriminating against them for disability, you are discriminating because you cannot take the standard cover.

Q427 Lord Rix: A personal example is that I have got an artificial aortic valve and I cannot get medical insurance. Admittedly my age tells against me as well, but if I want to go to BUPA or PPP or any of those they simply will not insure me. Surely that could apply to disability as well.

Mr Willman: It could but I would not see that as a way of stopping someone being employed.

Mr Alambritis: I think the insurance industry is in the business of risk and they need to acknowledge that. They have had huge hikes in premiums irrespective of the claims records of businesses on employer's liability insurance, and we would urge the Association of British Insurers to be realistic and remember what business they are in, and that is the business of risk. It is not for them to say "We will not insure on this occasion", and they are increasingly doing that and that is disturbing the majority of our members who want reasonable cover at reasonable rates.

Q428 Lord Rix: I presume that small employers do not really carry their own insurance schemes, like the BBC; they do actually use outside insurers.

Mr Alambritis: Yes.

Q429 Tom Levitt: Given the experience of your members operating under the current provisions of the DDA, (and in asking that I am aware that because of the small firms' exemption many of them have no experience of working under it) what further guidance do you think should be provided to employers and employees on what is meant by "reasonable adjustments", and how specific should that advice be?

Mr Alambritis: We are working very closely with the Disability Rights Commission. We have endorsed, supported, a couple of guides to small employers on reasonable adjustment with illustrative cases and with a "frequently asked questions" section, which is beginning to be helpful. We believe that the Government was right to move from 20 to 15 in a staged approach in terms of the exemption from employment liability side of the DDA, and that 15 is gong to move down to zero. This staged approach has raised the profile of the issue for small employers. We, of course, have concern for Blackpool hoteliers, for example, who say to us that they have got very olde-worlde, small hotels and it would be very expensive for them. We do say that given reasonable resources you have to do a reasonable adjustment. Just more information, as much as possible. We are working together with the CBI, the IOD and the BCC to raise the profile of the whole issue of the DDA, but you are quite right to hint that the vast majority, 97 per cent, of all employers employ less than 50 people. We have a large number of small employers. There are 12 million in work and there are 2 million disabled people who want to work, so we do need to get the message out. Small employers just need a lot more information and lot more reassurance so that they do not take the reactionary approach and that they are positive. If you look at Rye, with Georgian shop fronts, if you look at Stratford-upon-Avon or Guildford, with its clock tower and its cobbled high street, those small businesses will need a lot of information. We have been talking to the Institute of Chartered Accountants and to builders, and they are in there now and they are doing the changes. It is important to reassure them about reasonable adjustments, and that is why we called on the Chancellor to introduce a 100 per cent capital allowance in the first year for firms that triggered off the changes well before October 2004. We were hopeful that, given that last year was the European Year for Disabled People, Dawn Primarolo and Gordon Brown would have acceded to that. What that would have done is triggered off the accountant advising the small employer "There is 100 per cent capital allowance; why don't you take advantage of that now", and that would have got the message across about reasonable adjustments. The window has been closed now with the March Budget, but that was a joint letter from the FSA and the DRC about capital allowances. What happens with capital allowances is that accountants tip off employers that they need to take advantage, and that would have got the message out.

Q430 Tom Levitt: A supplementary on that: as we have established, many of your members have had a nine-year exemption from the DDA, on the employment side but not from goods and services, clearly. Nowhere in the present Bill is there any suggestion of any further exemption. Do you think there should be?

Mr Alambritis: We are having a debate within the FSB on exemptions. We have seen a slow-down in ministers standing up and saying "We are introducing this legislation, but for small firms there will be an exemption." There is a huge debate about exemptions, and the fact that they can create artificial levels where if a firm goes up to that level, on the advice of an accountant or a lawyer, it stops growing. So on exemptions we are mindful that perhaps there is a case for exemptions on VAT, on Corporation Tax but on issues to deal with disabled people we believe now that exemptions are not the way forward.

Q431 Tom Levitt: Thank you. A very interesting reply. We talked earlier on about the interview situation and the obligations on the employee. The TUC has argued that an employer should only be permitted to ask disability related questions during the recruitment process in order to establish whether reasonable adjustments are required during recruitment or in order to carry out the job. What are your views on the employer asking disability related questions?

Mr Willman: I think the TUC view is quite correct. There is no need to worry about anything, you are looking for the right person to do the job.

Q432 Lord Swinfen: Carrying on with reasonable adjustment again, if disability leave (ie, time off to allow someone to adjust to a newly acquired impairment or a change in an existing impairment) were included as a reasonable adjustment, would this pose difficulties for small employers?

Mr Willman: Yes, it would, but for the small employer, usually, the employee is an integrate part of the team; everybody puts themselves out to help them.

Q433 Lord Swinfen: So I would be right in thinking that any difficulty would be offset by the value of retaining someone who was experienced and already fully trained?

Mr Willman: Yes. Allowances can be made, and often are in small companies, for people who work from home.

Q434 Mr Williams: If we turn now to employment tribunals, we gather from your written submission that you have had a recent survey that found a quarter of small businesses think that employment tribunals are unfair, and a further 39 per cent of firms consider the systems to be very unsatisfactory. Were there any particular issues raised by this survey which have implications for small employers' experiences of the DDA?

Mr Alambritis: No. We did not tease out the types of cases that the members were dealing with. The survey on employment tribunals was to try to see the extent to which our members were settling cases because ministers were saying that there are now less employment tribunal cases and we were pleased with that, but we also need to make sure that there are less employment tribunal cases because industrial relations are going well and not because employers were being advised by lawyers to settle.

Q435 Baroness Wilkins: Many of our witnesses have argued that employment tribunals should have the power to recommend reinstatement of an employee if an employer is found to have discriminated against them. What are your views on that?

Mr Alambritis: The employment relationship is founded on trust and confidence. That is the term that lawyers use. Provided, despite the employment tribunal case, that that trust and confidence is still in place we would have no objections to that, but by the time you have gone through an employment tribunal, the trust and confidence has well and truly gone. It would be innovative to insist on reinstatement. We do not know the extent to which the employee would want to go back to that firm if the tribunal has been acrimonious. We have no view on that. All we know is that the trust and confidence might, by then, have gone.

Q436 Baroness Wilkins: You would not like to see it laid down that they should reinstate them?

Mr Alambritis: Even if the law was laid down that there should be reinstatement, we believe very few employees would opt for that option, despite the fact that the dignity of work is very important. The whole basis of the employment relationship is steeped in trust and confidence.

Q437 Baroness Wilkins: That is the employee. What about the employer's point of view?

Mr Alambritis: That is the employee's, yes. The employer, even today, has the option to reinstate.

Q438 Baroness Wilkins: Or not?

Mr Alambritis: Or not to reinstate, yes.

Mr Willman: With smaller employers there is less likelihood of the person being able to go back because there is only one office, or one very small unit, and they are probably going to come into close proximity with people they had the clash with, or whatever the cause was, which may make it uncomfortable for all parties, whereas larger companies will have the option of moving people into different departments, different offices, so there may be a place for small businesses not being happy to reinstate but bigger businesses reinstating in another office, which answers your question.

Q439 Lord Rix: Can I ask a very basic question because I cannot find the answers anywhere in all this paper. What constitutes a small business? How many employees would you have to have to become a medium-sized business or a large business?

Mr Alambritis: There is a three-pronged approach now to the definition. There is the definition called "micro" business, which is 0-9 workers. That is a "micro" business. "Small" is 10-49 workers and "medium" is 50-249 workers. That is now accepted by both the DTI and the European Commission. In the old days we talked about SMEs (Small and Medium-sized Enterprises) employing up to 500 people, and that definition was too wide. There is a more targeted approach. If you want to talk about the nation of small shopkeepers that Napoleon called Britain, then you are talking 0-9 workers.

Q440 Lord Rix: That is micro.

Mr Alambritis: That is micro.

Q441 Lord Rix: But will come within the Act?

Mr Alambritis: Yes.

Q442 Chairman: In the Federation, what is the breakdown in those three groups?

Mr Alambritis: The breakdown is that the vast majority - 80 per cent - of our members are micro businesses. We are truly reflective of the smaller end of "small businesses".

Q443 Lord Rix: Would not many of those micro businesses be family businesses?

Mr Alambritis: Yes, families or partnerships. A lot of them would be family enterprises - sole traders.

Q444 Lord Rix: Indeed, you go down to our local, tiny supermarket and it is one family. The DDA would not be imposed on them unless they are employing anyone outside. That is correct?

Mr Alambritis: The concept of family extends to small businesses. I was, before I came here, at the DTI with the Minister for Small Businesses, Nigel Griffiths, who was presenting the "Grafter" awards for The Sun newspaper. These small businesses applied on the basis they were grafters, real grafters, as businesses. The vast majority of them were family businesses and those that were not said that they treated their employees as family, which is why with a lot of the legislation that is coming through small businesses, in particular, are saying "I do that anyway. That is what I do in my family".

Q445 Chairman: In your evidence you have a paragraph 9.1, which you might be able to expand on for us. We are not quite sure what the gist of it is.

Mr Alambritis: Yes, we have expressed concern about employment tribunals and the fact that there are vexatious and litigious applications going through employment tribunals. In 1990 we had 30,000 employment tribunal cases, and in 2001 that went up to 130,000. So there has been an increase in employment tribunal cases. However, we are mindful that if we reform employment tribunals we would not be averse to DDA cases going through employment tribunals and not through the courts. Yesterday the Minister for Women and Equality, the Deputy Minister, Jacqui Smith, announced major reforms to the equal pay value tribunals. These are tribunals that look at employment cases. If this Committee were to recommend that employment tribunals were reformed for the purposes of looking at DDA cases or all cases, then we would have no objection to moving away from courts to employment tribunals for enforcing DDA. Some of the reforms that Jacqui Smith talked about yesterday were specially trained tribunal chairmen. So you would have a specially trained tribunal chairman on DDA and you would have employment tribunal presidents given the power to appoint tribunal panels with specialist knowledge of DDA cases, and so on and so forth. So that our problem with employment tribunals currently is that they are very general; the panel do not understand some of the peculiarities of that sector or industry - both employment side and employee side. If employment tribunals were reformed wholesale we would not object to DDA going through employment tribunals.

Q446 Chairman: So the proposal which you mention in that second sentence, that is a proposal from the Government?

Mr Alambritis: Yes, yesterday from the DTI.

Q447 Lord Rix: It would certainly be less expensive. Would it not?

Mr Alambritis: Yes, it would.

Q448 Tom Levitt: The TUC has recommended that the new duty which this Bill would put on public authorities in Clause 8, to promote equality of opportunity and eliminate discrimination, should be extended to the private sector as well. What kind of impact do you think that would have?

Mr Alambritis: We believe that it is right to start with the public sector. The private sector, in particular small businesses in the private sector, would like to see, would expect, and would want to see government or the public sector, with the resources that they have, set the example, or set the thing in motion. What we would say is the public sector starts, kicks off, does it and any evidence or information or research or glitches can be looked at and then perhaps extended thereafter to the private sector. We think the public sector should have a good few years of this first.

Q449 Tom Levitt: Would it not be true to say that companies will be looking out for role models to follow in this? Clearly, the smallest businesses are not going to find their role models in the public sector. Does there not, therefore, need to be a sort of beacon system, if you like, or role models encouraged in the private sector?

Mr Alambritis: I think a lot of small businesses have a supply relationship with the private sector and a lot of the private sector large companies, in particular, probably do undertake some of the aspects that public authorities are doing. So we would like to see it happen voluntarily first and then move, if we have to, to legislation.

Q450 Chairman: Why would you need that approach? After all, if the promotion of equality of opportunity and elimination of discrimination, which we can all agree is what we all want to do, why would you have to wait for the public sector to show you how to do it?

Mr Alambritis: We are not waiting for the public sector to show us, we are waiting to see what is done and what needs to be done.

Q451 Lord Rix: Why do you think that the employment level among disabled people is probably as low as the average, I think, about 50 per cent, but with learning disabled people it goes down to 10 per cent? Is there anything more you think, within the private sector, small businesses could do to engage people with disabilities or to actually promote the possibility of their being employed?

Mr Willman: Yes. It is sometimes difficult to have the jobs that people with learning difficulties can actually undertake, with the level of supervision that may be required. Some of the larger organisations often limit the numbers very low for people with learning difficulties. There is absolutely no reason why they could not increase the numbers. Learning difficulties covers a whole spectrum, and many of those with mild learning difficulties are already employed in smaller businesses. Literacy levels, for instance, are very low in some of the employees in small businesses, mainly because of learning difficulties, but businesses adapt.

Q452 Lord Rix: Do you think you could become more pro-active in this area? Do you think legislation will, as it were, force you to become more pro-active in this area?

Mr Willman: No, I think a culture change would, and that is not going to come by legislation.

Q453 Lord Rix: Have you surveyed your members as to how many actually employ disabled people?

Mr Alambritis: No, but we can do. We have a bi-annual survey of small firms that is the largest, non-governmental survey of SMEs. We ask them how long they have been going, turnover, region, sector, female, male, but we can feed that into ----

Q454 Chairman: Can that include a question about the employment of disabled people?

Mr Alambritis: I would have to look at that, because the next one is coming out in April but I would certainly look at that and send a note to the Committee as to whether we have asked that question.

Q455 Chairman: If you have not, perhaps you could.

Mr Alambritis: Yes.

Q456 Lord Rix: When I served on the ethical committee of one of the large investors, one of the questions I insisted on putting in was exactly the attitude of the company concerned towards employing disabled people and, also, learning disabled people. You would be amazed at the evasive answers which were forthcoming.

Mr Alambritis: We do have members who are disabled. We have members who are blind. One particular member, who is blind, was concerned about employment regulations. She employs 20 people in Leeds, she is the employer and she wanted model contracts of employment, model supply contracts and so on, and we sent those to her in Braille. So we are, as an organisation, mindful that our members come from all walks of life. We have a lot of members who used to be union members themselves, who used to be in a trade union and who have no problems with unions. We have members who are blind, who are disabled, so we have to be cognisant of that, and that is a learning curve for us as an organisation.

Q457 Baroness Wilkins: Would you not agree that legislation has, in fact, created that culture change in the treatment of women?

Mr Willman: Yes, I do. As I was saying, it is an attitude of people that needs to be changed, not necessarily employers.

Q458 Baroness Wilkins: Is there a point at which you think legislation might turn to create a backlash again? Does that worry you at all?

Mr Willman: I do not think it would create a backlash, I just do not think it would be effective unless we put it on to mainstream television and encouraged people that we respect people for who they are.

Mr Alambritis: Legislation also leads to debate, and I think that is what the Disability Rights Task Force led to, the setting up of the Disability Rights Commission led to and discussions on this Bill are leading to. The message gets out and there is debate about the issues. So we were very encouraged with the Disability Rights Task Force, the inclusion of business organisations and the organisations representing disabled people. The setting up of the Disability Rights Commission has led to debate. It is chaired by Bert Massey and we feel that that Commission has gone the right way about a balance between enforcement, legal advice and help. I think that has led to the debate, and that will eventually lead to culture change.

Q459 Baroness Wilkins: You do not worry about a backlash?

Mr Alambritis: We do not worry about backlash because a lot of small businesses have to compete against the likes of big organisations that say they do it - and probably do do it (I do not want to be mealy-mouthed) - the big supermarkets, the big petrol station forecourts; they sell themselves on their reputation, their glitzy and glossy advertising and the fact that they are eco-friendly, disability friendly and so on. I think a lot of small employers know they have to come up to that standard as well. More and more people are asking "I want to buy this but who am I buying it from?" Within a local community small businesses are finding that they can compete on personal service, personal knowledge, staff reflecting their community and having a good reputation within the community. The business that reacts to legislation, or where the employer employs in their own frame, will lose out. I think a lot of employers are beginning to see that.

Q460 Lord Swinfen: I would like to ask about the financial implications of the draft Bill, at the moment, in particular to transport. How difficult do you think it will be for small businesses in the transport industry to fund the additional disability awareness training that will be required?

Mr Willman: It will be extremely difficult because many of the transport companies are struggling. Taxi companies, for instance, are having to pay a lot more for their taxis to make them wheelchair friendly. They are also losing customers to private hire because people with mobility problems find wheelchair-accessible taxis difficult to get into. So they have got a reduction in income and an increase in costs. So it would be best, wherever possible, to make the access more available for the disability awareness training to the smaller market. So it is discriminating in favour of the small businesses to make sure that people do get the ----

Q461 Lord Swinfen: Are you satisfied that that training is available at the moment and being properly provided?

Mr Willman: I am satisfied it is, in the area in which I operate, yes, which is the South East of England.

Q462 Chairman: Who should pay for the training, do you think?

Mr Alambritis: We have a point about seeing whether the Government can part-fund some of the training. I think this is one area where the Government can look to part-fund with real belief in the area they are part-funding, and that is to ensure access, mobility for disabled people whilst recognising some of the problems of the taxi industry and the private hire industry itself. I think it sends the right message to our cabbies that the Government is eventually coming to their help because they are always grumbling!

Q463 Chairman: In your evidence, paragraph 9, you said you have no objection to extending the DDA to volunteers. With the employment rules of the DDA, could they simply be extended to cover volunteers or would they need adjustment to take into account any special circumstances?

Mr Alambritis: The FSB is a volunteer organisation itself, and therefore we looked at this long and hard. In fact, if you look at employment tribunal cases the term "worker" includes volunteers. So a volunteer to the RSPCA, or to the FSB or to the another voluntary organisation, they are volunteers, they are branch treasurers, branch chairman - whatever - within the volunteer organisation and they come under the definition of "worker". So there is experience. So we have no objection to extending this, because volunteerism is very important to the UK.

Chairman: That was the last question. We have a division in the Lords, so could I thank you for attending? There will be a transcript on the website, if you would like to look at it. Anything else that you wish to send in to us we will be happy to receive. If you would like to look back at the transcripts of the other evidence and see if there is anything in that that you would like to comment on, you can do so. Thank you very much indeed for coming.

The Committee suspended from 3.44 pm to 4.00 pm for a division in the House of Lords.

Memorandum submitted by Trades Union Congress (TUC)

 

Examination of Witnesses

 

Witnesses: Mr Peter Purton, Policy Officer, Disability, Lesbian, Gay, Bisexual Transgender Rights, Equality & Employment Rights Department; Ms Sarah Veale, Head of the Equality & Employment Rights Department, TUC and Ms Nichola Dandridge, Legal Adviser, examined.

Q464 Chairman: Thank you very much for coming along. I think you heard the evidence from the previous witnesses. There is a list of the relevant interests of the Members of the Committee which are relevant to this Inquiry. You are being web-cast, so it would be helpful for those who can hear you but not see you if you would be kind enough to introduce yourselves for the record.

Ms Veale: I am Sarah Veale, Head of the Equality & Employment Rights Department at the TUC.

Mr Purton: I am Peter Purton, the Policy Officer at the TUC, with responsibility for disability.

Ms Dandridge: I am Nichola Dandridge, from Thompson's Solicitors. We work closely with the TUC on this matter and, indeed, act only for trade unions in employment related matters.

Q465 Chairman: Thank you. We have received evidence that people with depression and anxiety face particular problems in the workplace. You have suggested changes to the definition that would mean improved coverage for people with these impairments. What types of discrimination do these people face in the workplace and what difference would be made by the changes you have suggested?

Mr Purton: My Lord Chairman, there is a number of surveys being done to back up the point that we are making in our evidence, and these are very much supported at an individual level by the experience of members of unions. The short answer to your question is that the types of discrimination that are particularly felt by people with mental health problems, psychiatric difficulties (however you wish to define it) start off with not being recruited in the first place, often as a result of prejudices about what having had a mental illness actually entails, but then if they have succeeded in being recruited, should they reveal at any point their history of mental illness, the stigma that continues to be attached to that has led to, in many cases, a great deal of stress and pressure building up on the individual that is, in fact, no help at all in enabling them to carry out the duties of their job or remaining in their job. They face a great deal of a lack of sympathy by colleagues should they be people who are still needing to have time off for treatment, for example; a lack of sympathy that simply would not apply to somebody seeking the equivalent time off, say, for a physical problem, and, also, quite often, as the evidence shows from the surveys, unfair treatment consequent upon this stigmatisation and this prejudice. We have seen from both the labour force surveys and from surveys carried out by MIND some of the quite startling statistics which show that even in the world in which disabled people, as a whole, have a way above average risk of failing to obtain employment, amongst disabled people, as a whole, a very high proportion of those are people with mental health problems. The MIND survey showed 70 per cent of people being deterred from applying for jobs in the first place, before they could even get into the labour market as a result of the popular attitudes around them. They showed 39 per cent, which is a very high percentage (also from the MIND survey) failing, because of their history, and no more than their history of mental health problems, at the recruitment stage to obtain employment, and another 30 per cent - and obviously a claim like this is much harder to verify - believing that they had lost their jobs as a result of people becoming aware of a mental health problem. So the scope of the problem is immense, even if those figures are themselves not entirely spot on. They indicate an enormous problem. We have been very concerned about it and we put forward proposals, supported by others, as I am sure they have reported to you, to take some steps to challenge that culture.

Q466 Chairman: In fact we are taking evidence next week from some witnesses in this respect. You have also recommended that the definition should cover those who are discriminated against because of a genetic predisposition to certain conditions. Could you give us an example of this discrimination? What are you actually driving at?

Mr Purton: I have not actually got a material example in front of me; I have not been notified of that question to enable me to do my homework on that one. We are thinking of a situation in which an individual might reveal, for example, in their job application or might be asked by a potential employer in the recruitment process (which is an issue we return to under other headings) about family history. If that family history were to say "Somebody in my parentage or grand-parentage suffered from a particular condition which I do not myself, yet, suffer from" there is a danger that they would suffer discrimination simply on the basis of what the employer might think that they must be predisposed at some point in their working lives to inherit this condition which would affect their working career.

Q467 Lord Rix: You argue that anyone with a diagnosis of a progressive condition should be covered by the DDA. Would it not be simpler to name specific conditions which could be added to by regulation, rather than to have such broad categories?

Mr Purton: Actually we think the opposite of that. What has happened so far has been an attempt to define it by individual conditions, some of which, as a result, has led to some conditions being previously excluded from coverage in the DDA, which has just seemed to us not fair and not logical either. It would seem more sensible to begin with a blanket coverage. After all the fact that you are covered by the law as it stands even of itself does not mean you have additional or extra rights, it simply means you have legal protection should anyone discriminate against you. So we are asking for no more than that. If we had that to start with then we would not have people who, quite plainly, under all the other categories in common-sense terms, would be regarded as somebody with a disability; finding a whole lot of employers saying "It says here you are not covered. This `progressive condition' does not include yours". So to leave it to a continual process of additional regulation - you could do it that way and that is the way we are doing it at the moment - it just seems it would be easier to understand as well for both employee and employer to have a straightforward, blanket coverage.

Q468 Lord Rix: From the moment of diagnosis, as it were?

Mr Purton: That is sensible.

Q469 Lord Rix: Your evidence also says that stress-related illnesses are serious and rapidly increasing. Is stress not an experience that the majority of us are affected by at some time in our lives? Can it really be appropriate for such experiences to be categorised as an impairment or a disability?

Mr Purton: I think the important question there is when one moves from stress to symptoms and conditions that are abetted by having been stressed in the first place. In other words, when one moves from there to a position in which, quite often (and this goes back, of course, to the discussion on mental health problems) many of those problems will have arisen from, but will certainly have been made worse by, particular forms of stress in the workplace. So that is why we adopt the approach we do there; it is not to add stress, if you like, to a particular list of conditions, but it is by changing the definition of mental health problems to make it more straightforward for someone who is suffering an impairment which otherwise meets the DDA definitions of mental disability to be able to invoke the support of that law.

Q470 Lord Rix: So it would fit more easily into your previous statement that you would like to see it from diagnosis, as it were, when it was diagnosed as an impairment; you would look on this as being a very suitable addition to the Bill. Is that correct?

Mr Purton: I would have to think about the precise form of words but in general terms, yes.

Q471 Lord Addington: The definitions you were coming down to, do you have a functioning definition as opposed to the list? That is really something we have heard in other evidence. Do you have a ready-made definition which you think would apply to these conditions or disabilities, generally? We have heard, also, that the model is a medical one, and it is a question that we have got to come back and ask other witnesses again: "Do you think you have a definition that would cover this situation?" If you do not, then with the best will in the world, we have to go with the list.

Mr Purton: I am sorry, just to be clear. Is this a question about progressive conditions?

Q472 Lord Addington: Yes, and that is inspired by that they have general implications for everyone.

Mr Purton: As you would have noticed from our evidence, TUC affiliates have, after a long debate, agreed that they would prefer to have a non-medical model of disability. In our comments on this draft Bill we have recognised that we are talking about a Bill that amends the DDA which is founded in a medical model of disability, and therefore, in terms of making suggestions for particular improvements to what is otherwise an extremely welcome piece of legislation (I should make that very clear), we will be doing so within the framework of the model on which it is based and on which the DDA is based. So the definition of what constitutes any condition or impairment will be the one within the DDA as amended by subsequent legislation.

Q473 Chairman: Are you implying that in starting with a clean sheet you prefer the social model?

Mr Purton: That is where we would prefer to start, but it is not where we are starting, we recognise that.

Chairman: Would you like to define the social model for us?

Q474 Lord Addington: Nice try! That is what we want.

Mr Purton: We can certainly send you some written material if you would like it.

Q475 Chairman: Perhaps you would prefer to do that. We have asked a number of witnesses and we have not yet got what one would regard as an acceptable definition of the "social model". Everybody uses the term but nobody seems to be able to define it.

Mr Purton: We would approach it from the viewpoint of taking into account individuals' impairments but making it a priority of tackling the obstacles to people's full involvement in society. That would be the way round it. I am sure you have heard versions of that from many other witnesses.

Q476 Mr Williams: I can understand why you may think that if you have a list of conditions it might exclude some that, in retrospect, might trigger some reaction under the Act, but if you go down the progressive route you have got to define what is a progressive condition. It may be that somebody has a stable but chronic condition that could easily be defined as a disability rather than progressive, and it seems "progressive" does not help much.

Mr Purton: The particular reason for us making this recommendation - and we are not, certainly, the only people who have made it and not the first people to have made it - is precisely the difficulty that a number of individuals with progressive conditions have encountered and, we feel, ought to have the protection, the right to appeal for protection, of a disability law, but because of the way in which the definition is currently drafted are not able to do so. So it could be at a non-symptomatic stage, for example, of a diagnosed condition. The changes that are being proposed in the Bill anyway address that with regard to specific conditions, and we are just saying "Okay, take that and spread it out across the board".

Q477 Lord Rix: Is there not a problem, going back to diagnosis, which would also apply to progressive conditions? You reach a certain stage where you are impaired in your progressive illness. What sort of board would have to declare them disabled? Would they have to go in front of - rather like the Attendance Allowance used to have - a board? Would they have to go in front of several doctors, like means testing? Would you be able to just go to your own doctor? It is a question of defining who diagnoses you in the end.

Mr Purton: I must say the TUC has not gone into the small detail of how this would pan out in practice. It is the case, however, that in terms of discussion in tribunals about who is and who is not protected by the DDA as a result of the state of their condition it has generally relied on a report from a doctor - very often their GP - and not always with the right results, which we allude to elsewhere in our paper. I cannot imagine any different approach would be followed in this respect.

Q478 Lord Swinfen: I am wondering whether you are not really trying to change the way in which society in general deals with people with disabilities. Is it really possible to do this by legislation or should it not be done by education?

Mr Purton: It should be done by both routes. The easiest thing to change is the legislation. We are in favour of having the strongest and most principally founded legislation possible which would then have to be promoted more broadly. You will see we have drawn particular attention in our evidence to our support for the proposal to establish a public duty because we think that turns it round from being a matter of an individual seeking redress against a wrong committed against them, which is the current situation, to one where public authorities, as it says in the Bill (and we argue that that should be a national thing and not just limited to public authorities), have a duty to promote anti‑discrimination and equality of opportunity and that will turn round the process. It has already begun to do so in terms of the Race Relations (Amendment) Act. It is about having a very strong message about how one goes about beginning what is obviously a difficult process, we accept that. That is one of the major reasons for the problems that we are addressing in our submission. By using that route we can combine the two methods and it will then be a matter of education as well, of course, it goes with it.

Ms Veale: All the legislation has a reflective effect. There are a lot of studies which show the impact of regulations not just in terms of regulating individuals' situations but in terms of changing the way in which employers or other groups in society behave. I think that is a very important aspect of it which is not always picked up in terms of just looking at the nitty‑gritty of how a piece of regulation works.

Lord Swinfen: I look forward to seeing your definition of the social model.

Q479 Chairman: Have you any evidence of discrimination against people who are perceived to be disabled or those associated with disabled people?

Mr Purton: I do not have any in front of me.

Q480 Chairman: You can send it to us.

Mr Purton: There is certainly evidence about it.

Chairman: It would be helpful if you could send it.

Q481 Tom Levitt: It occurs to me that one difficulty with the word progressive to describe conditions is that something like Crohn's disease, which is not a progressive condition but is an episodic condition, may well render someone liable to discrimination. I think we will have to revisit that word progressive. You argue that disability‑related questions should only be asked of applicants for employment to establish whether reasonable adjustments are required in the recruitment process or in order to carry out the job. How would employers know when it was appropriate to ask such questions and how could they know if they would be contravening such a law?

Mr Purton: There are a number of different elements which that question addresses and which we need to need to deal with in turn. Once the law was in place the Government would have to issue guidance to employers. We would say as an aside that the level of current unawareness that employers have of their obligations under the DDA is quite worrying, especially for those employers who are going to be brought in under the Act later this year. I think it is one million or so smaller employers who are going to fall within its remit in October and the level of awareness among them is very low. There is clearly a job to be done in alerting people in the clearest terms as to what their obligations as employers are going to be from later this year. One of the ways in which the problem that you identify is readily avoided is if in an application for a job (and obviously with a small firm it would not be the same as if it were for a large firm) everyone is asked whether or not they have any access requirements with regard to the interview process, for example. That would be a straightforward measure that could be put in place. The other element is that people should be looking at and planning to make their workplaces more accessible, with fewer obstacles for disabled people, whatever their impairments, in order to help them obtain employment and with an offer in the paperwork to meet such needs as are called for. It is very hard to produce files of papers to prove this, but it is very clear from people's reports of what happens to them that if it is clear in the guidance that that is a question that should not be asked then what you will be doing is outlawing the fishing expedition, the kind of question that is designed to pick up the things we were talking about before, such as is there a history of illness in your family, when were you last in hospital, when did you last go and see your doctor, everything else which could lead a prejudiced employer to say that this person might be fully competent to do the job but they do not want to take the risk that they are going to be sick at some future date and not recruit them in the first place, which is really the hardest discrimination to prove. So if we could outlaw that form of questioning it would be a good thing. That would then need to be explained to people, but I think it could be because they are going to have to be told anyway what the law involves and what their new requirements are from October. That should be part of the information that is put to them. ACAS and other organisations can be around to offer advice.

Q482 Chairman: I am still not quite clear. I believe it is standard procedure, I have seen the forms, for public bodies certainly to produce what we call the Equal Opportunities form where you have to fill in your nationality, your ethnic background and the simple question, "Do you consider yourself to be disabled, yes or no?" Are you saying that that should not be asked or the prospective employer should not be able to follow up the answer yes to that question?

Mr Purton: We would normally say best practice is where you would separate ‑ and this would apply with most large employers I know ‑ the monitoring form from the application form because the monitoring form is there for your personnel department to analyse the percentages of different groups of people who are applying for jobs. There is a distinction to be made there.

Q483 Tom Levitt: My question was about making the reasonable adjustments. I accept the gist of your answer was related to the existing DDA rather than the Bill that is being proposed. I think there is a difficulty in your answer going back to this question about the progressive or hidden disabilities. Someone who is HIV positive probably would not regard themselves as disabled but, nevertheless, under this Act they would be protected from discrimination. It may be that a reasonable adjustment in the case of someone who is HIV positive would be to have an education campaign within the workplace to make sure that there were not harmful attitudes being shown towards that individual. How could the employer arrange that if he did not ask the question in the first place about whether this condition existed?

Mr Purton: If the individual had not volunteered the information about their condition then the employer would not know so it would not apply to that situation. For a larger employer it would be good practice to have information and training on a wide range of similar questions, that would be a good idea. Certainly for the personnel department within a large company to have training, as I am sure many of them do already, in a whole range of these questions would be one way of tackling that. Obviously if they do not know they cannot respond, but the individual would have access to the information at some point in their lives so that they did now, this is what the Bill says anyway, and thus have protection under the DDA.

Q484 Tom Levitt: The parallel is with other forms of employment protection where the employer may actually be frightened off from asking a perfectly sensible and legitimate question because of the way in which it might be seen as being discriminatory. Is that a possibility?

Mr Purton: Of course. I would weigh it up with the problem we have at the moment, which is where employers are asking discriminatory questions and as a result discrimination is a much more serious problem.

Q485 Lord Swinfen: I want to go on to the question of triggers. The DDA and the draft Bill contain a number of triggers for making reasonable adjustments. In your submission you suggest that a common objective standard is adopted with the lowest threshold, ie "serious disadvantage". Why do you think that serious disadvantage would be an appropriate common threshold for triggering the duty to make reasonable adjustments across employment, goods and services and public functions? How would you define serious disadvantage?

Ms Dandridge: The motivation in making this point in the TUC's submission is the preference that unions would have on this point for common trigger factors across all the different areas of operation of the DDA as amended, not least because there is going to be a significant degree of overlap in practice between, for example, the duty on public authorities in the Bill and the duty in relation to the provision of goods and services and in some respects in relation to the employment law duty and starting from the position that the DDA as amended is extremely complex both in its operation and from working out what its impact is and we would hope that simplicity would be an advantage. In terms of choosing the lower threshold, the reason we have suggested that serious disadvantage might be an appropriate form of wording is simply because it reflects fundamentally the employment law provisions which we are used to operating. In terms of the trigger, that is not a feature which has caused huge problems. There is no significance in the choice of words serious disadvantage as opposed to substantial disadvantage. What the TUC is proposing is the employment law trigger operating across the board. In terms of the definition that is advanced in the Bill, one of our concerns was in terms of the complexity of the definition which is focused on outcome and that did cause us some concern, although obviously trade unions and the TUC are not holding themselves out as experts in terms of goods and services. Nonetheless, having seen how the goods and services provisions have operated and having a great deal of familiarity with the trigger in the employment law context, there is concern that a trigger which is focused on an outcome, as indeed is the case with 21(d) which might slightly, if not significantly, distort the way that this particular trigger is going to operate, for reasons which I am happy to expand on, perhaps that is self‑explanatory, we felt that consistency across the board would be of huge assistance to all those involved. Finally, although there have been significant problems in the interpretation of the Act, the employment law provisions for substantial disadvantage is not one that I think has caused great problems. For that reason we have advocated for it to apply across the board.

Q486 Lord Rix: We have received evidence from the DRC and the Disability Charities Consortium and the Law Society amongst others that they would like to see the words "substantial disadvantage" as opposed to your "serious disadvantage". As I do not have a Roget Thesaurus in front of me at the moment I am not clear as to the difference between these two. Would you have any difficulty in accepting substantial disadvantage as opposed to serious disadvantage?

Ms Dandridge: No. The point I was making is that there is no particular significance in that distinction.

Q487 Mr Williams: Perhaps we could turn to anticipatory duty. In your written submission you recommend that the anticipatory duty which applies to service providers should be extended to the employment provisions of the DDA. Your submission notes that "the absence of the anticipatory duty has a particular impact in 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." You support the Disability Rights Commission's submission that an anticipatory duty should be applied to the employment provisions of the DDA. How do you see such a duty working in practice?

Mr Purton: It is a very important part of our proposals for strengthening the effectiveness of the legislation, which I repeat we welcome. How would it work in practice? It would need guidance to illustrate for employers how they could extend it beyond the current situation. It would need guidance that would only be calling upon them to be aware of the circumstances, aware of the need and aware of the policy of the nation in order to encourage the greater employment of disabled people as a means of breaking down social exclusion. All of that the Government is very familiar well in all the work that has been done across many departments in this area. This could be a cog in the wheel of moving that forward more rapidly because it would be part of attempting to challenge the overall culture, part of the educational process, to have an anticipatory duty for an employer to take the necessary steps to make their organisation disability friendly. It is hard to specify what that would be because for each employer that would be a very different question depending on the size of the organisation and the nature of employment, the location, existing facilities, existing awareness, resources, all those things would come into play quite. Instead of having to wait for somebody to come along and say, "I want to work for you. You have accepted my qualifications. However, in order for me to work for you you will have to make the following adjustments to your practices and procedures," an employer could review their enterprise and say, "Okay, let's anticipate what steps we need to take." Obviously they do not need to take all of them instantly, they can plan to bring them in according to their resources, in order to make their organisation more disability friendly than it is now. They could obtain advice from the DRC or other relevant organisations. There are all sorts of questions that come up there. There are lots of places that could provide information on employment practices. Where to go for that information could be centralised and circulated in the same guidance that is going to have to go to employers anyway around the new measures that are going to be proposed and put in place in due course. This would be part of it. Having a plan is what it is about.

Q488 Mr Williams: So you are saying that the anticipatory duty is a policy provision rather than a practical provision, are you not?

Mr Purton: It is both.

Ms Dandridge: Just to follow on from what Peter has explained. There are two ways that we envisage it might operate in terms of practice. Firstly, through what is currently drafted as a duty on public authorities. The public sector duty is in itself anticipatory to some extent and so we were looking to build on that and maybe extend it into the private sector, which clearly is a matter that has been discussed in other contexts. The other specific mechanism that could be adopted is simply to drop the requirement for knowledge under the existing duty to adjust provisions in the employment law sections, Part II of the DDA. If there was no requirement for knowledge of a specific person's disability then it would impose an anticipatory duty. I should say that none of this should replace the existing law which protects a particular individual who has made their disability known and wishes that to be known to the employer. In terms of how an anticipatory duty might function, one obvious way would be to drop the requirement for knowledge and that would have two effects. Firstly, it would bring the DDA into line with the European law where arguably there is no such requirement for knowledge under the Directive ‑ more than arguably, it is not there. Secondly, the reasonableness moderator would mean that the extent to which the employer would have to go to anticipate particular disabilities would impose a very much lower threshold than in situations where the employer knew of a particular employee's disability. So it is in both those ways that we are suggesting there might be positive ways of taking this anticipatory duty forward, both through an extension of the public sector duty and also through revisiting that requirement for knowledge which in itself prevents an employer from having to anticipate particular disabilities amongst the workforce.

Q489 Mr Williams: If you are saying that this anticipatory duty might mean practical provision, do you think that that would lead to a call from the smaller businesses to have an exemption from this because of the burden that might be put on them given the various needs that disabled people could reasonably expect?

Ms Dandridge: We would hope not. Obviously all of this is moderated by what is and what is not reasonable and this is not an absolute duty. Perhaps more significant is that these small businesses are providing goods and services to the public and having to anticipate the clients with disabilities. It is doing no more than reading over that anticipatory duty with their own employees, because there is a certain irony at the moment in that certainly public sector and private sector employers at the moment are under an obligation to anticipate disability in terms of the goods and services they are providing and that is absent in terms of their own staff. So what one would expect to be the other way round is a slightly distorted obligation on those individuals.

Q490 Mr Williams: Have you made any assessment of the cost to employers of combining a low trigger and anticipatory duty?

Ms Dandridge: A lot of the costs would be reduced by virtue of the fact that those are precisely the adjustments that should have been implemented already in relation to the goods and services provisions or, if they are not, then they are going to be done by this year. Many of those adjustments would have been carried out in relation to the Part III obligations on those organisations.

Chairman: We have a number of important questions to ask you and we have to finish just before five, so if we could move on now to reasonableness.

Q491 Baroness Wilkins: You say in your evidence that 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." Do you have examples of this in practice?

Mr Purton: Those of you who are familiar with the workings of cases under the DDA will have come across the case of Surrey Police versus Marshall from 2001, which is a case in which essentially, despite the tribunal ruling in the applicant's favour, it was overturned by the appeal tribunal on the basis of an understanding that the employer had taken, as far as they were concerned, reasonable steps to find out about the applicant's condition, but, in fact, even though these were reasonable steps for the employer to take to establish the applicant's condition the evidence was actually not correct on any objective test. Nonetheless, because they had taken the view of a third party who could be regarded as a reasonable person their judgment stood and the individual did not get the job. That is just a perverse situation. That is the most highlighted case and it is one the Disability Rights Commission flagged up at the time, but there are others which again I would ask Nichola to enlarge upon.

Ms Dandridge: What is and what is not reasonable overlaps with the issue of justification.

Chairman: Perhaps we could ask that question now and then we could fill in.

Q492 Lord Rix: The TUC argues that "the ability of an employer to justify their act of discrimination ... [is] wrong", but you go on to say that the European Employment Directive has made important changes to the defence of justification. Can you explain what implications you think this has for the current legislation?

Ms Dandridge: Yes. This goes back to the issue that the TUC has raised on the need for simplicity and consistency in that there are separate tests for reasonableness and justification. We say that is very apparent from the proposed clause 21(d) in the Bill where there are issues of both reasonableness and justification. What we would propose is an objective justification which again is consistent with European law. One of the cases which the TUC and the DRC have been involved with is an employment law case which related to the moribund justification of defence in the adjustment provisions where the court was looking at the relationship between reasonableness and justification. It is the recent Court of Appeal decision in Collins against the National Theatre Board and it is a fine example of how phenomenally complicated it is when one tries to merge the case of reasonableness against justification, not least because the justification test in the DDA is established under section 5(3) of any low threshold, whereas in Europe the justification is quite a high objective standard and reasonableness under the adjustment provisions of the DDA establish quite a high threshold. When one puts the mix of those three together it becomes very confusing. The TUC's position is that there should be simplicity and not complexity and there should be a standard which is objective and which coheres with good practice and also European law. If I can be specific about the impact again on 21(d), the public sector duty: our concern is that the mix of reasonableness and justification in that definition is going to lead to exactly the same problems as we have had in the employment law context and for that reason it is our case that we should be moving towards a single test for the employer which the tribunal or courts can then apply, which we say should be an objectively assessed test so that good standards within the industry are being promoted and it should not depend on the particular views of particular individuals which can vary according to who they are and where they are coming from and what their background is.

Lord Rix: I think that is a very reasonable answer!

Q493 Lord Addington: This is a question about giving a tribunal the power to order reinstatement. Do you think this is a realistic power to expect somebody who has been discriminated against to go back into that particular workplace?

Mr Purton: Firstly, this was actually a proposal that the Government agreed to in its response to the Task Force recommendations on page 49. We are building on strong backing for this proposal from a couple of years ago. The key thing is that there should at least be a choice available to people. The option for a disabled person to get work, as we know from all the other evidence, is itself often a major problem. To be given no choice if they win a case or to be told you can have £10,000 is fine, they will take it, but to have their job back would be a better option. Certainly it is the case that a higher percentage of people in DDA cases would prefer to take that option than happens in other employment tribunal cases. It is also not always the case that there has been an irretrievable break down between the employer and the employee. It will often be the case where there has been an irretrievable break down that it is the last thing that either party would want, but that is not always the case, it is about having the option.

Ms Dandridge: Certainly it is our experience - and we do deal with a lot of disability cases for trade union members - that what people with disabilities want is a job or they want their job back and quite often the situation that we find ourselves in is pursuing claims where there has been a failure to adjust and it is precisely that failure to adjust that has led to the person not being able to continue working. So it is not as if there is some huge bust up which means that relationships have broken down as one might find more commonly in an unfair dismissal claim, it often is a simple physical inability to carry on working. It was illustrated quite clearly in a quite widely publicised EAT, which is Meikle, which some of you may be familiar with, where a teacher in a teaching union could not carry on work because the adjustments had not been carried out by her employer and as a consequence of that she claimed that she was constructively dismissed, but she made it absolutely clear that if the adjustments had been implemented she would have wanted reinstatement. The issue before the EAT and the tribunal was whether or not in a constructive dismissal case, where by definition a relationship is meant to have broken down, it was possible to have reinstatement in those circumstances and the EAT acknowledged that that is the reality of many disability cases where adjustments have not been carried out, that that is precisely what is required and it was allowed in that case. Certainly it is our experience that when people come to us as TUC and trade union lawyers what they want is the job and not compensation and it is a distortion to pretend these issues are about compensation and financial features because they are not, they are about employment in the majority of cases.

Q494 Lord Addington: So you are saying it is not your experience for there to be a break down face to face with the employer, it is more about a technical detail, about the way they are working?

Ms Dandridge: It is a break down in relation to the failure to adjust, but certainly the break down does not extend to the employee not wishing to return. If a tribunal was ordered to require adjustments, then from the union and individual's point of view there is no reason why that relationship should not continue.

Q495 Baroness Wilkins: You state that the duty on public authorities to promote equality of opportunity and eliminate discrimination should be extended to the private sector as well. What impact do you think that would have both for disabled people and the resources of the private sector?

Mr Purton: First of all we ask why it is limited to the public sector. If it is a good thing and we have accepted it is a progressive step, it is capable of making significant changes in and of its own right in the public sector because it is a large sector, but why limit a good measure only to the public sector? For us it is a significant element in the battle to change popular culture to deal with prejudice and discrimination across the board, which is going to be unnecessarily slowed down if we limit the measure to one sector only of employment when the potential is there to broaden it out. It is the same answer in some respects to the answer we have already given to an earlier question about anticipatory duty and so on. There are a lot of overlapping points being made here. In practical terms we are looking for employers to be called upon to review their procedures. Without this duty being created future generations are going to have to wait until many private sector employers get it in place, many of whom have already set a very good example indeed and we do not want to take away from them, but let us broaden that. Their example shows that it can be done across the board without them going bankrupt as a result of it. Generally, as the Employers Forum has often argued, it is good for business. The arguments people might use for not having thought through the facts to object to this very rarely stand up to close examination. That is a very strong argument. The chief purpose is to be part of that changing culture across the board. The benefits to employers will, of course, in light of the things we said earlier, include some upfront changes in the use of their resources, additional costs in order to change their working practices, their premises or whatever, but the other side of it is that if the law is strong enough there will be fewer employment tribunal claims and fewer payments to be made to disgruntled former employees.

Chairman: Thank you. That is an extremely good point upon which to end the discussion. There will be a transcript available on the website and you will also be sent a transcript within the next few days. If there is anything you would wish to add or any other comments you would like to make when you look back at the transcripts of the other evidence we have received, please do so. Thank you very much for coming.