Deirdre Costigan and Jane Lancastle.

Q29 The Chair: Welcome to this evidence session for the committee’s inquiry into the transition from education to employment for young disabled people. I start by asking our two witnesses today to introduce themselves briefly before we start with the first question.

Jane Lancastle: I am assistant secretary of the Prospect trade union.

Deirdre Costigan: I am national officer for disability equality with UNISON, the trade union.

The Chair: Thank you for joining us today. We are looking forward to our discussion. I am going to start off with a general question just to get the lie of the land. Can each of you briefly identify what you think are the top-line barriers for young disabled people when moving into work?

Deirdre Costigan: UNISON’s experience of young disabled workers is that they face a huge number of barriers when moving into employment. If you look overall at our experience of representing disabled workers, we recently did an analysis and 40% of all our employment tribunal cases relate to disability discrimination. We are inundated with experiences of discrimination related to disability in the workplace. That experience is reflected with young disabled people.

Discrimination is the number one issue that young disabled people face in entering the workplace, but it starts even earlier than arrival in the workplace. It starts in the education system where the careers guidance system is broken when it comes to young disabled people. I know you have had written evidence and you will have future evidence in person, but we represent staff who work for the careers service across the board. We saw the end of the Connexions service, and we no longer have any tailored support for young disabled people. Young disabled people are reliant on websites, chatbots and those kinds of things and there is not the support they need in order to identify public services as a career that they could get involved in in the future. That is the first barrier that young disabled people face.

Once they get into a job in public services, the biggest thing they face is a lack of access to reasonable adjustments. UNISON has done numerous surveys of disabled workers to find out what their experience is in the workplace, and that was the number one issue. Some 74% of respondents to a survey of disabled workers that we did said that they did not get some or all of the reasonable adjustments they needed in work. That can be anything from a change in working hours to additional breaks to a chair that cuts down on the pain they might experience in doing their job. We did not just find that people were refused reasonable adjustments; we also found that they were just ignored by management and never got a response to their request. Even where they did have an agreement that they could have adjustments, 24% waited a year or more for those adjustments to be put in place. That is obviously going to cause huge issues for a disabled worker, and I know you are going ask some questions later about the impact of this. Access to Work is supposed to be one of the answers to this, but there are big problems with Access to Work. At the moment there is a massive waiting list to get help from Access to Work, and that is probably something we will discuss further today.

The other barrier that young disabled people face in entering the workplace is the lack of disability leave. Sickness absence is something that is used against young disabled people in terms of progression and of continuing in their job, particularly if they are in their probation period. If you need to take time off sick when you are in your probation period, that can be used against you. Your probation can be extended and you may end up losing your job. Disability leave ought to be a reasonable adjustment that you are entitled to under the Equality Act 2010. It is written in as an example in the code of practice that sits under the Equality Act 2010, but employers do not believe that it exists. Our two recent surveys found that only 17% of disabled workers in the public services that we represent workers in have access to disability leave, so most employers do not offer disability leave and it leads to people having to take that time off sick. Those are some of the biggest issues that young disabled workers face in public services.

Jane Lancastle: I have some separate points from the ones that Deirdre has made, but I agree with her. One of the main barriers is that there is such a low understanding by employers and awareness by managers that they are discriminating. Particularly for Prospect members, this is more acute for those who are neurodiverse. Even less is understood about adjustments to approach in an application process for them. Many of our members are high-performing people; their neurodiversity just does not fit the application, interview and onboarding process. Subtle nuances in the application process and the performance appraisal process, which are led by behaviours rather than by competency, are unhelpful for disabled people to navigate. However, even when the person has declared their disability to the employer—and not all will declare a disability straightaway because they will be concerned that it will be a barrier and there will be a perception about them—they still find that, after declaring the disability, the employer can still fail to manage a process suitably and make the correct approach and adjustments that Deirdre referred to.

I would like to give a bit more colour on this with an example. A neurodiverse member of Prospect applied for a role, declared their disability and requested reasonable adjustments for the interview. They asked to receive the questions three hours ahead and sought confirmation on the format of the interview, such as competency, behaviours or success profiles. The employer responded in good time for the person to prepare. However, less than 24 hours ahead of that interview, the person received a further email to inform them that the format of the interview had changed. That created a significant obstacle for their preparation that they were unable to overcome, and they presented poorly at interview.

The member submitted a grievance for failure to make a reasonable adjustment. It was progressed to an internal appeal hearing. I emphasise that the decision-maker in this situation was a public sector body, an arm’s-length body of the Civil Service. Its appeals person said: ‘I have upheld your appeal on the basis that the late-notice communication from HR confirming the change in interview structure only 24 hours before your interview demonstrated a lack of appreciation and understanding by HR professionals of your disability and the impact this would have on you during the recruitment process. I acknowledge the impact you feel this has had on your opportunity to fully prepare and subsequently deliver a confident interview. Therefore, the process failed to ensure the interview was accessible to you’. This comes from an HR professional who should know better. If HR is unable to get it right, that does not bode well for managers.

There is also poor understanding from employers of access to appropriate support for disabled workers. When it comes to creating an inclusive environment for people with disabilities, financial support from the Government and accommodation such as changes in work schedules can obviously aid employment, but there is a lack of awareness among employers of such resources.

I will touch on a couple of other points. There is little understanding from employers of the benefits to their businesses from employing a more diverse workforce. The loss of employment organisations such as Remploy, which directly employed disabled staff, has made it much more difficult for young disabled people to gain on-the-job experience and get into their first job.

Some young people may not even recognise that they are disabled but may be aware that they work differently from others. I understand that there is some good practice. In teaching hospitals, for those students who are starting their training courses, some pre-course assessments are conducted to assist them in their journey, and at that stage some people discover their disabilities that were unknown previously.

Q30 The Chair: Thank you. That has given us a good overview. We are looking at the transition from education to employment. Some of the things that both of you have talked about could happen at any time, whether or not you have just started a job and whether or not you are young. Do you have a feel for that? I suppose the question might be: do those things tend to be less obvious with older workers who have been in the job for some time? Do you think the examples that you have given of barriers are particular to young people going into the workforce, or is it more a commentary about what happens to people with disabilities throughout their working lives? I realise that there will not be an exact answer, but I wonder what your impressions are.

Jane Lancastle: The barriers that I have talked about could occur at any stage of a person’s career. My experience is in trade unionism, and the problem for people who are transitioning from education into the workplace is that at that point many of them are not trade union members, and therefore they will not be able to call on somebody to assist them to navigate it.

The Chair: So you do not pick them up as much or hear about them.

Jane Lancastle: In Prospect we do not have that many in student membership. I am not sure whether UNISON can talk to that further.

Deirdre Costigan: From UNISON’s perspective, our young members have a slightly different experience, mainly in terms of being able to exert their rights. They experience some of the issues in the same way that an older disabled worker might, but for a younger worker there is a lot more difficulty in standing up for those rights. We have done a number of surveys focusing on the experience of young workers, and an example of what they tell us is that someone was told by management, and this is a quote, ‘This job isn’t made for people with differently wired brains’, or that it would not be fair to others to implement adjustments for the young disabled person. We also have disabled workers coming back to us and saying they were afraid of raising the issue. I have one young disabled worker who said that they were forced into working part-time hours and now their employer wanted to get rid of them instead of making their fixed-term contract permanent, especially once she started trying to speak out and raise a grievance.

Young disabled workers are often in a more vulnerable position with their rights at work. They may be on probation or on fixed-term or zero-hours contracts, and they may not have the same employment rights as others who have been in the job for more than two years. It is far more difficult for them to say to the employer, ‘Look, you haven’t responded to my request for reasonable adjustments’ or ‘You haven’t responded to my request for disability leave’. They are much more isolated in the workplace than older disabled workers.

Lord Blencathra: Deirdre, you said that 40% of the claims you deal with relate to disability. Are you able to state what kind of disabilities they are? Are they physical disability, eyes, deafness, mental or whatever?

Deirdre Costigan: It is an absolute mix of all of those. In some cases, just one person will have a mix of different impairments. There is no area where we would say that it is one particular kind of impairment rather than another; it is across the board.

Over the years we have probably seen more mental health issues than we had in the past. People are more likely now to say that they have a mental health impairment. There is recent data from the ONS showing that young people in particular are now more likely to have a mental health-related impairment, but our data shows that it is across the board.

In some ways it might be a red herring to focus too much on the kind of impairment that people have. UNISON’s approach is the social model of disability, and that is increasingly the model that we see public service organisations at least saying they believe in and want to sign up to. It is about focusing not on the impairment a person has but on the changes we need to see in society. In the past a lot of public service organisations focused on the medical model of disability, which was about saying that there was something wrong with the disabled person and they needed to be ‘fixed’—I use these words about what we used to think in the past. Now we know that it is actually the workplace that needs to be fixed, so we do not need to focus so much on a person’s impairment; we need to focus on the workplace. How do we change the culture of a workplace and how do we change its bricks and mortar? How do we bring in flexible working so that all disabled workers can have access to that?

Q31 Lord Laming: Thanks for coming along—it is very helpful. We have had a lot of written evidence along the lines that you have given us in the introduction today. The overall picture has been really discouraging about helping young people with the transition from school into employment. Do you have any examples of good employers and good employment practices that you can share with us?

Jane Lancastle: Good employers link diversity to their industrial strategy and embrace the benefits that diversity brings to their workforce, where they provide equal access. The Met Office has recently introduced a workplace adjustments passport. There is a clear link in what that is capturing rather than having a non-medicalised model of it.

A person in school would have a statement of educational needs and a development plan, which should be portable for them as they progress through school or go from school to school. When they enter the workplace, there is nothing like that in existence. As I said, the Met Office now has a workplace adjustments passport. You are not required to have a disability; anybody can complete it at any time. It may be for a short time; if somebody breaks a leg or an arm, they can use it for those means. That is good practice.

The Met Office is striving to improve the diversity of its workforce. Recently it had an online session for schoolchildren to give them a flavour and a taste of the work that the Met Office does, ranging from forecasting to science. It collected data specifically to look at those people who were disabled, and 8% of those who had signed up for it were disabled.

Deirdre Costigan: Certainly, among the employers we work with, passports are a real success story for employers that are using them. Many employers in public services now have a passport system, whether that is in local government, the health service, or higher and further education. The issue with passports is that of course it is employer by employer, so there is no consistency across the sector. That is certainly an area that could be looked at. We also find inconsistency within employers; in the NHS, for example, we have lots of employers that have adjustment passports, but not all trusts have them, so you can be unlucky in the trust that you are in. It is not mandated across the whole NHS, and that is certainly a concern.

Where passports do exist, they are great, because it means you do not have to renegotiate your adjustments every time your manager changes or you move to a different team in the organisation. It is great for the employer as well, because they do not have to spend loads of money and valuable HR resources having arguments for hours on end about whether someone can come in an hour later because they are fatigued in the morning due to the medication they take. Passports are brilliant, but they need to be made more consistent; it is a patchwork, I suppose.

Where we have agreed disability leave policies with employers in public services, that has been really positive as well—but, as I say, it is far too low. There has been an improvement; before Covid, we found that about 6% of the employers we worked with had disability leave agreements, and that is now up to 17%. It is still nowhere near good enough, but it is much better than it was. That shows that a focus on that area can bring improvements but, again, it is employer by employer, which is really hard work for trade unions.

Unfortunately, as I said in my opening remarks, the legislation in this regard is not strong enough. We still have employers who literally say, ‘I don’t believe disability leave exists as a concept’, even though, for example, you should be entitled to disability leave if you are awaiting reasonable adjustments to be put in place. As I said earlier, we have 25% of people saying they have waited for a year or more for their adjustments. If employers knew that they had to give disability leave for that year or more, they would certainly put those adjustments in place a bit quicker. We really need to strengthen that aspect.

The final example of good practice I will give is the workplace disability employment standard in the NHS. That is not actions it has taken but a set of measures to look at the experience of disabled workers in the NHS. It includes pay levels—are disabled workers more likely to be at the bottom rung of the pay ladder? Are they more likely to be harassed or bullied by managers, colleagues or members of the public? Do they get their reasonable adjustments? It is not going to solve the problems overnight, but it does bring transparency—the kind of transparency that we do not really have anywhere else. Very few other employers are this open to showing us, warts and all, the experience of their disabled staff. There is a long way to go in addressing the issues in some of the individual trusts, but it is a great start, and if we could build on that in other parts of the public services, that transparency would drive progress for young disabled workers.

Lord Laming: It is great that there is good practice around. Please give us a couple of thoughts on what factors would motivate employers to make this good practice general practice.

Jane Lancastle: The normalisation of these activities and the collection of data are critical. I see lots of employers attempting to collect that data. There are lots of concerns by employees as to why the employer is collecting that data, and I think one of the keys is the employer explaining why they use that data. Those are some of the barriers there.

I also think that good employers have communities of managers who learn from each other in coaching for this. It is the normalisation of the activities as well; you would request a reasonable adjustment in a similar way to requesting annual leave. Rather than there being a default position where the employer sends somebody to occupational health or via an HR route, it is something that becomes a normal day-to-day part of the business. There are so many efficiencies to be saved that way.

Deirdre Costigan: There is good practice out there. For example, the HSE recently produced great guidance on reasonable adjustments, which UNISON was involved in helping it write. We were the only trade union involved, and it included recommendations on a two-week deadline for responses to reasonable adjustment requests and on disability leave being something that should be offered. However, I think UNISON would say that good practice, encouragement and recommendations are not sufficient to get the employers that we really need to work on to take action. Good employers will do this stuff anyway. That is why we believe that it is not just good practice; it is changes in the legislation, rules and regulations that mean that people are able to enforce their rights, because currently young disabled workers are not able to enforce their rights in the way we want them to. I am sure we can come to that later in the discussion.

Q32 Lord Shipley: Can I pursue that point about the extent to which employers actually know what they should and can be doing? We have huge expectations in England of the Government, who will through regulations define what policy should be. But England is a country of 56 million people, and I wonder whether business could not actually do more for itself. Have you any experience of a good employer helping a less experienced employer through mentoring schemes? In other words, you have a bilateral arrangement, but you do not actually need the Government to be regulating more and more; you need people who can understand what should be done, and then actually deliver that in partnership with another employer.

There are many business organisations that could help with that; I am thinking of chambers of commerce, the Federation of Small Businesses and others. But it cannot just be centrally driven in a country of our size, or can it?

Deirdre Costigan: UNISON is a UK-wide trade union, so we are not talking just about England. Certainly, the employers we work with do work with other organisations within their sector and beyond. For example, in local government there is the Local Government Association, and local government employers do lots of peer-support work, including in the area of equalities. Within the NHS, as I say, it is a sort of federation and different trusts support each other. But in public services, one of the issues is that local councils and the NHS really do not have additional resources to spend on other organisations that do not have the remit to deliver. If you are not able to deal with hospital waiting lists or pay for social care in your local council, for example, you are really not going to be focusing on helping the council down the road or the hospital trust in the next county. That is one of the issues we have.

I think UNISON is very aware that you cannot legislate your way out of every problem and issue, and there has to be a role for both the carrot and the stick. The business benefits of employing young disabled people, and how it can really add to the creativity, diversity and productivity of the workforce, have to be really clear to employers. On the other side, there also have to be clear lines for where employers must not go when it comes to disability discrimination, and for the support they need to offer to disabled people under the Equality Act.

It is not clear enough at the moment, so too many employers are able to get away with refusing people simple adjustments that would not cost them any money at all, such as coming in an hour late, or possibly working from home a few days a week. These are changes in the way your job is organised: lots of different things that do not fit into the stereotype of reasonable adjustments, which people often feel means putting in ramps or making bricks-and-mortar changes to a workplace. That is not really what reasonable adjustments usually are. For quite a lot of our young disabled workers, it is more about things such as flexible working, so that you can manage your condition perhaps one day a week from home, or take additional breaks if you have a lot of fatigue with the impairment you have.

Lord Shipley: Do you have any knowledge of any business in the private sector that is assisting another business directly, on a one-to-one basis, on how it could improve its support? I am happy with the answer that you do not, but we may need to search for good examples of good practice.

Jane Lancastle: I can answer that very simply because we have lots of members in the private sector, and the answer is no, I am not aware of it. I do not have any experience of it. There are lots of HR professionals who have many forums and communities in which they engage and talk about these matters. They will do some lessons learned and share experiences, but the HR people are not the people taking those decisions. The managers within the workplace are making those decisions so, as Deirdre said, you might ask for something simple, maybe somebody wanting some noise-cancelling headphones to assist them to concentrate in the workplace. The HR professionals who are part of these communities are not the ones making those decisions. I am sorry that I have not seen any examples of that practice.

Q33 The Chair: Deirdre, can I ask you a quick question about the passports? I picked up from what you said that maybe you would like them to be mandatory, because it is a growing number of employers but not all. Do those that do passports at the moment agree a format, and does it matter if every employer has its own format for the passport—or are you also saying there should be guidance on the format of the passport?

Deirdre Costigan: It is very different. As I say, it is a patchwork. Different organisations have different approaches to passports. UNISON would say that a passport needs to include a commitment to timescales to respond on reasonable adjustments and to deliver those reasonable adjustments.

To respond on reasonable adjustments, we would say that you need to get a reply within two weeks. At the moment there is no time requirement or deadline for responses to reasonable adjustment requests. If you look at something such as flexible working, there is a 12-week deadline for responses to flexible working requests. There is a right to refuse—you can be turned down—whereas if reasonable adjustments are reasonable, you have a right to them under the law. There is an issue because even if you go to an employment tribunal, if you have never been responded to and there is no deadline, how do you even know when the clock starts ticking for a tribunal claim? We think that needs to be included.

We are also very clear that reasonable adjustment passports need to be based on a social model. We have seen some in some public services employers that are based more on the medical model. They ask people lots of questions, for example, about their medication: ‘What medication are you on?’. That should not matter. The employer does not need to know that in order to give you an ergonomic chair, noise-cancelling headphones or any of the other adjustments that people might need. There is no necessity to know the medication a person is on. Those are two key things we would like to see in passports to see more consistency.

Jane Lancastle: Even if an employer is unable to find a moral requirement to do the right thing in the workplace, the difficulty we have is that there are such high hurdles for claimants to overcome. The threat to an employer of a tribunal claim is a long way off in the distance, and the employee has to overcome such a high burden of proof. It is difficult to evidence the reason for somebody not being offered a job, for example, because of their disability.

Despite the shifting burden of proof, the initial burden is on the claimant to show that they have been treated less favourably and to point to comparators who may not have that disability who may have been treated better. They then have to provide evidence that, albeit non-conclusively, the worse treatment was due to discrimination on the grounds of a disability. These high hurdles and the stakes against the employee are there, and I do not think the employer sees that as an immediate threat to be motivated to do the right thing at the right time.

Q34 Lord Blencathra: I was fascinated by what you said about reasonable adjustments, because in my opinion it is just not happening. The duty to take reasonable steps to make things suitable for disabled people has fallen by the wayside. It may interest you to know that on 4 December I will introduce a Private Member’s Bill—I cannot deal with every problem—to try to insist that, for the 70,000 people in wheelchairs, if the step or steps are less than 12 inches in any building, a ramp is provided. In order to make that happen, I will seek to amend Section 20(9) of the Equality Act to say that reasonable steps taken under the second requirement—to make adjustments—include the introduction of a ramp suitable for wheelchair access in substitution for steps.

That is the way we are going to try to do it for wheelchairs. I think I would like a paper from you on what changes to the adjustments part of the Equality Act you would like and what you mean by ‘reasonable steps’. The equalities department will not tolerate any amendments—you are nodding—to the Act, so the most minimal way we can think of doing it is to say that we will not change the Act, but that ‘reasonable adjustments’ means that you must provide an ergonomic chair, a ramp, hearing aids or whatever. I think we would all like a paper on that.

The Chair: Yes, that is good.

Lord Blencathra: What I ask you officially is: what is the consequence for young disabled people when their rights are not upheld in a workplace or during the recruitment process? What do they then do practically and how does it affect them mentally? Do they want to fight it, or are they just disheartened and do they give up?

Jane Lancastle: There is a range of all of those. The issues are substantial and can be long term for some people. Some are tenacious and will fight for themselves. I know from what has been said to me that, for others, it has limited their career aspirations and they may have gone in at a lower level to start and worked their way up when their competency was far higher. I would not like to make any sweeping statements. I do not have any statistical data on that, but it ranges.

Deirdre Costigan: I have a bit of statistical data, so I can fill in some gaps. We recently asked a group of young disabled workers in a survey about the consequences for them. We found that 25% of young disabled workers said they had to go part-time over working full-time due to their disability, because they could not get reasonable adjustments in the full-time role; 24% said they left a job because they could not get the reasonable adjustments they needed; 23% said they took a lower-paid job where they could get reasonable adjustments in preference to a higher-paid job; 20% left a job and just resigned due to discrimination on the grounds of disability; 18% said they were denied progression in a job; and 12% were refused a job due to reasonable adjustments that they asked for.

I think that shows that there is quite a significant impact of young disabled workers not getting the reasonable adjustments they need. We would like to see that in all those cases young disabled people felt able to raise a grievance, go to an employment tribunal and bring those employers to justice or make them accountable, but they are not able to do that. They end up just resigning from the job or taking a lower-paid or part-time job elsewhere. It also has a massive impact on people’s mental health. I am looking at the written responses to this survey, and the first few responses are, ‘My mental health is impacted’, ‘It had a large impact on my mental health’ and ‘My mental health was significantly impacted to the point I needed psychological support’, so there is a huge impact on mental health.

It also causes people pain and fatigue in work to the extent that their impairment is exacerbated and then they end up having to take sick leave. That is where the real problem starts. They are on sick leave and then that is used against them in the job. As I said earlier, they can end up losing the job because they are still on probation or have been in the role for less than two years. They cannot progress within the role, and they get turned down for training because their attendance record is looked at when training opportunities come up.

Again, I have direct quotes from UNISON members, including: ‘I couldn’t access the training because my sickness record was not good enough’. All of that leads to the pay gap and the fact that, on average, disabled people are paid £3,700 a year less than non-disabled people, which is directly as a result of that lack of access to reasonable adjustments and disability leave. I have a few stats on what we found with disability leave. When people needed time off to do with their disability, 57% of young disabled people had to take sick leave—and you can only take so much of that before you end up on a sickness absence, or if you are long-term sick you lose money because you can go down to half pay, et cetera, or be on statutory sick—20% took annual leave instead of getting disability leave when it was to do with their disability, and 4% had to take unpaid leave. Only 4% of respondents to the survey said they got disability leave. That is an impact on people’s pockets. They can be out of a job and earning less.

Lord Blencathra: Clearly, we have recorded what you have said, but have you submitted that as a paper to the committee?

Deirdre Costigan: I have not, but I can add that.

The Chair: It would be really helpful if you could.

Lord Blencathra: What you have said is quite powerful, and I would love to see those statistics and the quotes as an official paper submitted to us.

Jane Lancastle: For the people who are tenacious and exercise their rights, if we look at the employment tribunal statistics for 2022-23, 7,440 cases of disability discrimination were brought. Compensation was awarded in only 150 of those cases. Obviously, some of those cases may have been settled prior to the court hearing, but that is an extremely low figure. For those that did go through to compensation, while there is an unlimited sum in discrimination cases, the reality is that £15,603 was the median award in disability cases. That tells us that lots of employers are not being made accountable for their actions.

The Chair: The next question very much follows on from that.

Q35 Lord Willis of Knaresborough: A great deal of what I wanted to ask has already been raised but, fundamentally, before we ask for more government action or regulation, I would like clarity on how current workforce rights are being effectively enforced, because you seem to be indicating that the rights that currently exist are not effectively enforced at all. Perhaps you could answer that as briefly as possible before I move on.

Deirdre Costigan: Jane has covered some of that, as you say. For UNISON, I suppose we would have to start by saying that collective bargaining has really reduced in this country over a number of years. That means it is very difficult to raise broader issues that would help all disabled workers in a particular workplace on the ground and in a collective way. As a result, we have a system of individual enforcement of rights through the employment tribunal system. Where a young disabled worker needs to enforce their rights, they currently need to raise a grievance locally, and then look at potentially going to an employment tribunal.

The issue is that at the moment there is about an 18-month waiting list to get to an employment tribunal. It costs money. It is mentally and physically draining; if you are disabled, adding all that pain and fatigue to what you are already experiencing is not something that you would want to do. As a young person—I think I used this phrase in my evidence—you do not want to blot your copybook that early in your career. Your relationship with the employer has broken down if you end up having to go to an employment tribunal. That is why so many young disabled people decide, ‘I’m going to cut my losses and just leave the job’, because it is far too much for them to have to face.

The other issue is that, as Jane mentioned, a lot of disability cases are actually settled without going to employment tribunal. In advance of this session, our in-house legal team sent me a list of all the cases we have done in the last year; very few of them went to a full employment tribunal judgment. As a result, we are not able to publicise them, because many of those that are based around settlements include an agreement on non-publicity. Therefore, it does not give young disabled workers the confidence to go: ‘I could do this; I could assert my rights in this way’. It also does not make case law; UNISON is really good at taking cases that are strategic and that actually clarify the law and make new law. But again, unless it goes to an employment appeals tribunal, that does not actually take effect. If it is settled, we are not able to say that this is a decision that can be relied on in future.

That all conspires to mean that the current system is just not working; it is very difficult to enforce your rights, and that is even without some of the issues that Jane mentioned earlier—the burden of proof, the difficulty of making out your case in an employment tribunal and, significantly, the issues around what is reasonable in terms of timeframes for responses and implementation of reasonable adjustments. It is not clear enough when employers are going wrong. You have to go to employment tribunal to prove that an employer has breached that reasonable adjustment duty. It is very hard to argue the case locally.

Lord Willis of Knaresborough: The two big issues you have raised in terms of getting government regulation more solidified, if you like, are disability leave and reasonable adjustment. I understand that. But on Friday last week, I went to meet a group of young disabled people who are leaving school this year. I asked them what they thought their rights were. These were people not with learning difficulties but with quite severe physical disabilities. Not one of them could answer that question, so I asked the careers adviser, who also struggled to answer. I really want to know: what can we as a committee do to increase the awareness of young disabled people before they leave school or college, so that there is clarity? Is that somewhere the Government can step in? It is easily within their power until people are at least the age of 18 and, in some cases, 24.

Jane Lancastle: Education is key for us all. Education starts in school and perhaps in the careers service. I would go as far as mandatory training, because there is such a lack of understanding from employers as well, so if we are starting with that awareness in education it would need to come in the careers service as well. I would like that to be extended to manager training on discrimination, with an emphasis on reasonable adjustments in workplaces.

Deirdre Costigan: What you experienced last Friday reflects our experience. In the responses to the question on disability leave in our survey, loads of young disabled people said, ‘The first time I ever heard of disability leave was in reading this survey’. They had literally never heard of it previously, so I am not surprised at all.

As far as education goes, as Jane says, to actually educate young people about their employment rights while they are in school and via the careers service would absolutely make a difference. But the onus is really on employers; they have the duty to provide reasonable adjustments. I think there is a lot of employer education that needs to happen. We mentioned earlier that employers can sign up to and agree great policies but, on the ground, managers do not seem to implement those policies at all and can just completely ignore them.

As I say, part of the issue is that some local managers will just say, ‘This is the law; this is the Equality Act and it doesn’t say the words “disability leave”. It doesn’t say that I’ve got to reply to you within four or six weeks or whatever for a reasonable adjustment’. That is the argument that young workers face when they are in the job. I think we need a mix of education and stronger regulation.

Lord Willis of Knaresborough: The reason for my visit and meeting these young people was that I am quite passionate about apprenticeships. I was talking to them about apprenticeships, and they looked at me in sort of amusement and said, ‘Apprenticeships aren’t for us’. I found it deeply hurtful that at the age of 16, while the Government and indeed all political parties are very keen on the whole business of apprenticeships, they already felt, ‘No, that’s not for us’. I wonder what you, as two trade union representatives, think we could do to improve that belief that apprenticeships are for everyone. What do we need in order for those people to be able to access apprenticeships and apply for them?

Jane Lancastle: My thought on the apprenticeship scheme is that I would look to include requirements to proportion their intake for each employer, with a weighting for inclusion for people with disabilities on their schemes.

Lord Willis of Knaresborough: You would make that a legal requirement.

Jane Lancastle: Within the scheme, yes.

Q36 Lord Prentis of Leeds: I will just ask a follow-up question on apprenticeships. The NHS has just announced a new scheme, the latest legislation to go through, which includes the use of apprenticeships. Surely we can get something written into the guidelines that covers disability.

Deirdre Costigan: We have had experience with similar cohorts of workers in the NHS—student nurses. We represent a lot of student nurses, and the big issue is clinical placements. People go on clinical placements as part of their nursing training but they do not have the reasonable adjustments they need. It runs through all this, and it is the same with apprenticeships; disabled workers do not think apprenticeships are for them because they are not getting the reasonable adjustments they need. They are not being told, ‘You can do this job because we will set it up in a way that suits the hours you are able to work or the way in which you are able to work’. Accommodation is not made in the way that it should be. Whether it is student nurses or apprentices, the answer is exactly the same: to have a much better and clearer offer to young disabled people when it comes to reasonable adjustments.

Lord Prentis of Leeds: Is the careers service not the vehicle for talking to young people about the issues you are raising?

Deirdre Costigan: The careers service should be the right vehicle but there is not enough focus on one-to-one, face-to-face, tailored support for disabled young people. Instead, it is very much web-based and generic advice. That is no good to young disabled workers, who need specific advice because every disabled person has a different impairment. That is why the Equality Act does not have a list of all the adjustments you could have because it would be an infinite list; it would never end. We need careers guidance workers who have some understanding of that and have a broad knowledge, as well as the tailored specific knowledge of what adjustments might work for individual young disabled people. We do not currently have that; it would take investment and political will.

Q37 Lord Porter of Spalding: You have a load of evidence that we need to get off you, but you are not allowed to give it to us because you have agreements signed with people saying you cannot share it. Do we not have any ability to draw it out so that, whether you like it or not, you cannot be held accountable for the fact that we now have it in the public domain?

Our focus is on young people, but surely the only way that people will understand that there is a point to going through the stress and strain of a tribunal is that, even if you do not get it settled in the public domain, you will get a result in the private domain. It does not matter whether you are getting your name in the newspaper; you just need a result. It would be good if we could publicise it more, even if it was only generic data by sector or by type of job in a sector—as granular as we could get it from you without you getting into trouble—as long as we could get it out into the public domain. That would give us more oomph in trying to make things a bit better than they are at the moment.

Deirdre Costigan: We can certainly look at sending through anonymised information.

Lord Bach: This is more of a comment than a question. Based on what you and Lord Porter have just said, it seems to me that, when we get a lawyer in front of us, that is the sort of issue that we ought to pursue with them: what happens when settlements are reached, how far can one go and how far can we go as a Select Committee?

Deirdre Costigan: While I absolutely agree with you and it sounds like an interesting area for the committee to look into, UNISON’s position is that we really prefer not to go to employment tribunal at all. We want to work with employers, and our members want to stay working in those jobs. They love their jobs. They work in public services for a reason.

Lord Porter of Spalding: That is our position as well. We would rather it never got to that but, if it has to, it is important that both employers and employees know that that is a real consequence.

Deirdre Costigan: That is why we would like the regulations and the rules to change.

Q38 Lord Blencathra: The need to make reasonable adjustments comes about only if the person asks for it. I understand that you cannot have a law where an employer sees someone coming in and says, ‘Oh my God, you must be partially deaf. What can I do to help you?’. But can we change the balance so that when a person says, ‘I am disabled’, the onus then shifts to the employer to say, ‘In that case, that triggers a requirement for me, the employer, to say, because you have said you are disabled, “What do you need?”, and we will provide it within X timescale’? I am not sure that is workable.

What gets me as a wheelchair user is that there is a little street near here called Strutton Ground, with 50 little shops, 22 of which have steps about eight inches high that mean I cannot go in. In order to get into them, I would have to write to individual shop owners saying, ‘Please can you make a reasonable adjustment so I can get into your shop?’. The Pret A Manger in Victoria Street has a step about 18 inches high. I would need to write to every shop. It should be possible to trigger something or other that means they will do that automatically; if I complain once, it should happen all over the country. Would my original suggestion work with employers? A person says, ‘I am disabled’, and the employer then has to do things within a short timescale.

Deirdre Costigan: That is the law at the moment. The duty to provide reasonable adjustment kicks in if a person is disabled and experiences a disadvantage at work, and the employer knows or should have known that they were disabled. So it is slightly wider than you having to tell. There is case law where people did not say they were disabled but the employer should have known because they were off sick for a long period of time and the employer just never bothered asking them.

The Chair: Not asking is not an excuse.

Deirdre Costigan: Exactly. So that exists, but what you are talking about is more of an anticipatory duty on employers. As you say, it would not be an individual thing; you would make the whole workplace accessible by default. We would certainly support workplaces that were accessible by default—that would be an advance on the current situation—but it is the case that if employers should have known a person was disabled, there is still a duty on them to provide reasonable adjustments.

Jane Lancastle: The word ‘reasonable’ is the interpretive part. One employer may interpret it slightly differently from another, and each is different. The reasonableness is the barrier.

Lord Blencathra: There was a case in Scotland, when I think the Royal Bank of Scotland was compelled to put in a very expensive ramp to get a person up three few steps into the bank. I am not asking for something that great, but others will refuse to put in even a little ramp over a tiny step that would cost only a hundred quid. It is up to the person to prove that was unreasonable and to go to court to do it, and that is not right.

Deirdre Costigan: Interestingly, although finance is often raised by employers as one of the big reasons why they say no to reasonable adjustments, the biggest reason is the impact it would have on other staff members. Often, they literally say to us that it would be unfair to non-disabled people. The law says you have to treat disabled people more favourably than non-disabled people, but that is what they come back to our members and our reps with all the time: it would be unfair to non-disabled people and to the team. Again, employers are not law clear on the law or their duty.

Q39 Baroness Stedman-Scott: Briefly, when the careers service or the jobcentres are working with disabled people, whether they have a neuro issue or a physical disability, there might be a fair bit of effort to start with but that support pulls away once they have crossed the threshold and gone into a job. Have you ever thought that if you left that support in place for six months to a year, many of the things that trip us up after that might be negated, and that might be money well spent?

Jane Lancastle: Yes.

The Chair: Well, we asked you to be quick.

Deirdre Costigan: I agree with Jane. We would like to see statutory time off for disability reps. I have not mentioned so far, but I mentioned it in my written evidence, that UNISON is one of the founding members of the ground-breaking Disability Employment Charter, which was put together by eight organisations, including us as the only union, disabled people’s organisations and disability charities. It is a set of nine recommendations to improve the lives of disabled people at work. One of those recommendations is statutory time off for equality reps. Some 40% of all our ET claims at the moment involve disabled workers, so there is a huge amount of support that we need to offer to those members at work.

There is no right to statutory time off to do disability-related and equality-related work at an employer if you are thinking of setting up a disabled group to try to understand what the issues are in a workplace, doing work on whether there is a disability pay gap or whether there are issues around bullying and harassment. The UNISON reps doing that currently are often doing that in their own time—in their lunch-break or after work. So we would really like to see statutory time off for equality reps, which was originally going to be in the Equality Act 2010.

Q40 Lord Laming: Your evidence has been most helpful. Just building on the last point that was made, as you leave us, are there any key policy changes that you are really keen that we recommend?

Jane Lancastle: To summarise the points that we have already made, with regard to apprenticeships, having a proportion for disabled workers would go some way to motivating employers. We are advocating a financial incentive to start, a bit like an employer having tax breaks for putting the right things in place for disabled workers and increasing the proportion of its disabled workers. Rather than that being a financial or economic contract, I would like that as more of a social contract between the employer and the workforce.

We need to make it easier for disabled workers to exercise their rights. That is one of the key points that we have mentioned here. Increasing the burden of proof on the employer with internal process to justify decisions made and activity in the workplace would go some way towards that, putting more responsibility and accountability on employers to motivate them to be more considerate of the need to support people in the workplace.

Deirdre Costigan: From UNISON’s perspective, guidance is not enough. We have lots of guidance. We need some key changes that would improve the situation of young disabled workers. We are a signatory to the charter, so we would back all the calls in the charter, but the key one that UNISON is really interested in pushing is a change in the right to reasonable adjustments so that it is enforceable and there is a deadline by which you have to have received a response.

We know that adjustments are different for different people, so we are not saying that there has to be a deadline for the implementation of the adjustment. A footrest might take a week from Office Depot, but if you need to get a British Sign Language interpreter, that will take longer. But just getting a response—'Yes, we’ll do it’—should be doable in a number of weeks. We have said two weeks, but we are open to negotiation on that timescale. There has to be a way that young disabled workers know when they have been fobbed off. At the moment, they do not. They have no idea whether they are getting it.

The implementation of reasonable adjustments also needs to be done in a timely manner. That word ‘timely’ is not sufficiently focused on in the Equality Act or in the statutory guidance that goes with it. We need that to be added.

On disability leave, employers do not see it in the Equality Act, so they do not believe it exists. There needs to be a stronger right to disability leave. How do we enforce that? There may be ways of looking at the EHRC having a stronger role in enforcing. Our members have suggested things such as inspectors going to check whether people are getting reasonable adjustments, so having a regulatory aspect. The EHRC is very low on funding and does not have the ability to do that at the moment, but we need some way of enforcing.

We would like to see mandatory publication of the disability pay gap in line with the NHS workplace disability equality standard that I mentioned. We would like to see that transparency across public services and all employers with more than 250 staff. We have seen with the gender pay gap that change does not happen unless this is mandatory. There was a voluntary system, but nobody did it.

We have not had time to look at Access to Work, but there are some key issues with it. There is a massive waiting list. Also, you get a great report from Access to Work—it does brilliant reports—but it sits on a shelf. Employers do not implement what is in the report on many occasions. Public service employers often have to pay most of the cost, so they do not want to pay. Many of our members say to us that their employer said, ‘It’s not our policy; we don’t want to do it; we don’t agree’, so it is not happening. We would like to see some sort of link between Access to Work recommendations and them happening. That would be great.

There are other issues around people having to pay up front for taxi costs and then claiming them back from Access to Work. If you are a young disabled worker on low pay, that is extremely difficult. You do not have years of savings in the bank as an older person might or might not have, so that is barrier.

I have mentioned time off for disability reps. The final thing is procurement. Public services spend a huge amount of money on procurement. There needs to be stronger requirements that organisations that we commission to deliver public services have to do some of this stuff as well. They need to employ disabled workers. There is no requirement on them to employ disabled workers at the moment.

The Chair: That gives us a lot to go on to write the report on the basis of the recommendations we have heard. We will finish there because I am very conscious of time. We are very grateful to you both. It has been a fast-moving and informative discussion. We will learn even more from looking back at the transcript, and we will have time to do that. As we have said throughout, if you have any more data that you think would be helpful or if, on reflection, given our conversation, there are things you want to add, please send in evidence. I remind you that you will get a copy of the transcript and will have some time to go through it to make sure it is as you would wish it to be. Thank you from us all. We will now close this part of the meeting.