Equality and Human Rights Commission (EHRC) – Executive summary – Supplementary Written evidence (YDP0058)

Equality and Human Rights Commission (EHRC) – Supplementary written evidence (YDP0054)

Executive summary

Young disabled people are disadvantaged by barriers they face because of both their disability and their age, and experience employment and pay gaps.[1],[2],[3]  Evidence suggests these gaps may be linked to the barriers to participation young disabled people face when entering the labour market,[4],[5] including through routes such as apprenticeships,[6],[7] with the pandemic making many issues worse.[8]

Evidence suggests children with a statement of SEN were less likely to have had access to careers guidance,[9] and a lower proportion of students in special schools had access to a qualified careers adviser.[10] We highlight concerns including inaccessible provision of guidance,[11] and insufficient information on accessibility in the workplace.[12]

Various employment support mechanisms are in place to address the barriers young disabled people face. However, we are concerned that schemes have not been adequately evaluated for effectiveness and are not appropriately tailored to young disabled people’s needs. 

The Equality Act 2010 provides extensive protection from disability discrimination, including the reasonable adjustments duty.[13] Under the Act, disability discrimination is asymmetrical (i.e. a non-disabled person will not be discriminated against if they are treated less favourably than a disabled person, therefore it is not unlawful to treat disabled people more favourably than non-disabled people).

The Equality Act also permits employers to take positive action measures to address underrepresentation and low participation of young people with specific types of impairment where there is evidence of under-representation or disadvantage.[14] Additionally, the Public Sector Equality Duty requires public bodies (and those carrying out public functions such as delivering services on behalf of public bodies) to give appropriate consideration (due regard) to the need to: eliminate unlawful discrimination, harassment and victimisation; and advance equality of opportunity between people who share protected characteristics and those who do not.[15] 

However, enforcement of Equality Act protections may be particularly difficult for young disabled people, with individuals unlikely to either be aware of their rights, confident enough to bring a claim or have the financial means to do so.[16]

Our key recommendations to the UK Government include:

• Addressing the real-terms funding cut the Commission has faced by increasing funding to enable us to continue to carry out our full statutory mandate and meet expanding regulatory obligations.
• Introducing a mandatory duty on employers with more than 250 staff to monitor and report on disability in the workforce, appropriately disaggregated by impairment type and other protected characteristics such as age.
• Improving data in relation to employment, careers guidance and apprenticeships.
• Providing Disability Employment Advisors and Jobcentre Plus work coaches with targeted training that covers the barriers young disabled job seekers face and the needs of specific impairment groups.
• Supporting compliance with the Public Sector Equality Duty in relation to employment support schemes, the provision of careers guidance, and access for pupils to education and training providers.
• Supporting schools to adopt a rights-based approach and ensure that teacher training and continued professional developments includes mandatory human rights education.

8 October 2023

Introduction

1. The Equality and Human Rights Commission (the Commission) is a statutory body established under the Equality Act 2006. It operates independently to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote human rights. The Commission has powers to advise the Government on the equality and human rights implications of laws and proposed laws, and to publish information or provide advice, including to Parliament, on any matter related to equality, diversity and human rights.
2. The Committee’s inquiry is timely. We recently advised the UN Committee on the Rights of Persons with Disabilities that disabled workers in Britain generally earn significantly less than non-disabled workers – a gap which has widened over time. We also noted that employment rates for disabled people across the UK remain lower than employment rates of non-disabled people, despite a gradual narrowing over time.[17]
3. This combination of employment gaps and lower rates of pay, coupled with the additional expenses many disabled people face on a monthly basis,[18] is a contributing factor to lower living standards, financial instability and increased risk of poverty, an issue we also noted in our submission to the UN. This creates economic and social challenges that require urgent attention, especially in light of the ongoing cost-of-living increases across the UK.  
4. The Children’s Commissioner 2021 survey found that that having a good job or career when they grew up was the top of aspiration of children with special educational needs.[19] However, too many children and young people in Britain face discrimination and barriers to opportunity, from prejudice or a lack of proper support in education settings to unequal access to work - with the pandemic making many issues worse.[20]
5. In this submission we concentrate on the equality and human rights framework, employment and pay gaps, employment support mechanisms, provision of careers guidance,[21] access to apprenticeships, and access to justice.

Our response

Question 1 - What barriers do young disabled people face when leaving education and entering the job market and workplace? Does this differ between different conditions or disabilities, and if so, how?

Employment and pay gaps

6. Young disabled people are disadvantaged by barriers they face because of both their disability and their age, and experience both employment and pay gaps. Employment rates for disabled people across the UK are substantially lower than those for non-disabled people. Although the disability employment gap has been gradually narrowing over time,[22] the gap in 2021/22 stood at 26.8 percentage points, with the gap for disabled 18-24 year-olds at 18.7 percentage points.[23]
7. The rate of unemployment for 16-24 year olds is the highest of any age group.[24] 16-24 year olds are also more likely than other age groups to be economically inactive.[25] In addition, young people aged 25-34 years saw the biggest relative increase[26] in economic inactivity due to long-term sickness than any other age group from 2019 – 2022, with the next highest increase seen in the 16-24 age bracket.[27]
8. Employment gaps for disabled young people vary by a range of factors, such as impairment type and geographical location. We know, for example, that disabled people with ‘severe or specific learning difficulties’,[28] autism and mental illness have lower employment rates compared with other disabled people.[29] We know too that there are higher levels of disability in younger age groups in the most deprived areas of England and Wales compared with the least deprived areas.[30]
9. In terms of pay, disabled workers generally earn significantly less than non-disabled workers, and this gap has widened over time. The most recent data show the disability pay gap stands at 13.8%. Pay gaps between disabled and non-disabled workers persist for all age groups, including younger workers.[31] More generally, younger workers tend to earn less than older workers.[32] This means that younger disabled people are potentially at a disadvantage in terms of both their disability and their age.
10.                     As with employment gaps, headline pay gap figures mask the variance between impairment type among disabled people, with autism, ‘severe or specific learning difficulties’, epilepsy, ‘mental illness’ or ‘other nervous disorders’ seeming to lead to particularly large pay gaps.[33]
11.                     In addition to employment and pay gaps, disabled workers and younger workers are more likely to be in insecure roles. In 2022, disabled workers were one and a half times more likely than non-disabled workers to experience severely insecure work.[34] Again, there is variation between impairment groups, with 38% of autistic workers and 28% of people with mental health conditions in severely insecure work compared to 20% of people with ‘other disabilities and conditions’.[35] There is also an insecurity gap based on age, with young workers two and a half times more likely to be in severely insecure work than those in the middle of their working lives (43% of 16-24-year-olds versus 17% of 25-65-year-olds).[36]
12.                     Evidence suggests that disability and age-related employment, pay and insecurity gaps may arise due to the barriers young disabled people face when entering the job market and workplace. Inaccessible recruitment processes,  failures to make reasonable adjustments and physically inaccessible workplaces have all been cited as barriers to participation.[37] Employer prejudice is also a reported barrier, with Leonard Cheshire finding that one in five employers would be hesitant to employ a disabled person.[38] Research from the Institute of Leadership and Management also found that a significant proportion of managers surveyed expressed discomfort with the idea of hiring autistic people.[39]

Labour market trends

13.                     Employment, pay and insecurity gaps are also influenced by labour market trends. Our 2023 Future of Work research found that since 2013, disabled people in Britain have seen sharper increases in rates of flexible working, self-employment, zero-hours contracted employment and employment in jobs at risk of automation than non-disabled workers.
14.                     Among disabled workers, younger disabled workers (aged 16-24) were found to be the most likely to be on zero-hours contracts.[40] The report notes that while several features of the gig economy remove some of the traditional barriers to employment, due to lower entry requirements, less formal recruitment processes and increased flexibility, the reasons for the increase are unclear.
15.                     It is unclear whether disabled people are actively choosing zero hours contract work because it provides flexibility, or because they are unable to access alternative, more secure forms of employment. However, recent research from the Work Foundation suggests that the inflexibility of full-time employment can push some disabled people, who need but cannot access flexible working, to choose part-time or casual work and self-employment to manage a disability or long-term health condition.[41]
16.                     While we welcome recent measures to improve flexibility and protect workers’ rights, such as changes to the law on flexible working[42] and the introduction of a right to request predictable working patterns,[43] it is too early to predict whether these changes will address the barriers faced by young disabled workers, amidst a shifting labour market landscape.
17.                     We are concerned that the rise of insecure work arrangements may undermine people’s rights under the UN International Covenant on Economic, Social and Cultural Rights, such as the right to fair and equal pay for equal value of work; a decent living; safe and healthy working conditions; rest, leisure, reasonable limitations of working hours and paid holidays. Insecure roles may also undermine rights under several key Articles of the UN Convention on the Rights of Persons with Disabilities (UN CRPD), including Article 27 (work and employment) and Article 28 (standard of living and social protection), among others.

Apprenticeships

18.                     In its National Disability Strategy (currently under review), the UK Government committed to ‘increase the number of disabled people entering into apprenticeships and ensure that those who start an apprenticeship go on to thrive.’[44] Apprenticeships are an important route into work, offering paid employment, on-the-job training, and a qualification. Benefits to apprentices include higher employment rates for those with an apprenticeship qualification compared to the wider labour market, and a wage premium for those who complete apprenticeships compared to those who do not.[45]
19.                     The barriers facing young disabled people who want to take up apprenticeships are well-evidenced. Open University research identified barriers such as a lack of one-to-one support; inaccessible learning materials and training facilities, and a lack of practical adjustments to enable learning.[46] This echoes a survey by the Learning and Work Institute which also found that some disabled people were more likely to withdraw from their apprenticeships because of a lack of support.[47] 
20.                     Disability Rights UK (DRUK) and the Disabled Apprentice Network (DAN) also note the need for greater flexibility to enable the participation of disabled people and those with health conditions.[48] There are also concerns about the low rates of pay for apprentices, which is a particular issue considering that disabled people’s costs are estimated to be on average 63% higher than non-disabled people.[49] In addition, DRUK and DAN note that some young people may be uncomfortable talking about their disability or health condition, and this acts as a barrier to accessing support.[50]
21.                     The data available for apprenticeships in England shows a mixed picture. The number of apprenticeships starters is lower than in 2016/17, including for those with a ‘learning difficulty and/or disability’ (LDD). However, LDD apprenticeship starters do now make up a larger percentage of total apprenticeship starters (from 11.2% in 2017/18 to 13.6% in 2021/22).[51] 
22.                     The proportion of LDD learners completing apprenticeships is consistently lower each year than the proportion starting apprenticeships. In 2021/22 only 11.5% of apprenticeship achievements were gained by LDD learners, despite the fact that the proportion of LDD apprenticeship starters has been higher than 11.5% since 2018/19 (13.6% of starters had a learning difficulty or disability in 2021/22).[52] While DfE does not provide data on withdrawal rates or reason for withdrawal, survey evidence from the Learning and Work Institute indicates that learners with a disability or long-term health condition are one of the groups most likely to withdraw from their apprenticeship.[53]  
23.                     Apprenticeship outcomes also differ by impairment type, with some impairment groups being more likely to undertake and complete apprenticeships than others. For example, in 2021/22 only 1.8% of apprenticeship starters described their primary disability as being a mental health condition, despite the fact that the NHS report that 25.7% of young people in England had a ‘probable mental disorder’ ‘in 2022.[54] Whilst this analysis suggests that there may be under-representation for certain impairment groups, further data analysis is required in order to fully understand this issue.[55]  
24.                     Occupational segregation may also be present in apprenticeships. The types of apprenticeships undertaken by individuals with ‘learning difficulties and/or disabilities’ differs from learners without LDD. In 2021/22, a significantly smaller proportion of LDD learners were starting an apprenticeship in ‘Business Administration and Law’ compared to non-LDD starters. However, the data is insufficiently granular to see which specific occupations are causing this disparity within these categories.[56]   
25.                     Analysis presented in this section so far suggests that LDD learners in England may be facing disadvantage within apprenticeship schemes. However, the extent to which disabled learners are disadvantaged is currently unclear, given that there is a lack of detail within the data (i.e., no withdrawal rate figures, no detailed subject break-down), and a lack of formal analysis undertaken by the UK Government.
26.                     The UK Government is undertaking various activities to increase access to apprenticeships for young disabled people, including developing an Adjustments Passport and flexibilities in English and maths requirements. New guidance has been published to support the claims process for learning support funding.[57] We also note the formation of the Government-sponsored Apprenticeship Diversity Champions Network, an employer-led initiative designed to increase the participation of under-represented groups and address occupational segregation.[58]
27.                     Initiatives to raise awareness of reasonable adjustments and support schemes are necessary as it is evident that some apprenticeship providers are uncertain about what support is available and what they should be providing.[59] Under the Equality Act 2010, treating disabled people more favourably than non-disabled people is not unlawful discrimination, which means there is wide scope for schemes and initiatives to support disabled apprentices.  The Act also includes positive action provisions, which may be used to overcome disadvantage, meet different needs or increase participation of disabled people with one type of impairment, when compared to those with other impairments. Commission research suggests that the positive action provisions in the Equality Act 2010, are under-used for example in relation to disabled people.[60] (Further information on the provisions can be found in the Appendix).
28.                     Recommendations:
1. Research should be undertaken to understand the reasons for the overrepresentation of disabled people, including young disabled people, in less secure forms of work.
2. The UK Government should monitor take-up of the new rights to request flexible working and predictable hours set out in the Employer Relations (Flexible Working) Act 2023 and Workers (Predictable Terms and Conditions) Act 2023 respectively, with a view to understanding whether these Acts leads to improved employment experiences and outcomes for disabled people. 
3. The UK Government should undertake more robust data collection and analysis on apprenticeships. This should allow for monitoring and comparisons of apprenticeship start, participation, completion, and withdrawal rates (along with reason for withdrawal) for disabled people, with data disaggregated by age, impairment type and detailed subject area. Providing such analysis would enable the UK Government, employers and other stakeholders to identify where action is required and target opportunities for young disabled people, including by using the positive action measures permitted by the Equality Act 2010 to address under-representation and low participation of young people with specific types of impairment. 
4. The UK Government should take steps to promote the availability of support schemes to both employers and apprentices, particularly in relation to disability, and remind employers of their duty to make reasonable adjustments.
    

Question 3 - How effectively do education systems provide careers advice, guidance and support which meet the needs and career aspirations of young disabled people? How could this be improved, and what examples of good practice are there in the UK and abroad?

Question 3a) - Do staff in schools and other education settings providing careers guidance and advice have the appropriate training and resources to support the needs and aspirations of young disabled people?

Question 3b) - How far do staff in education settings engage with employment support services and schemes such as Access to Work, supported internships, or disability employment advisors in order to support young disabled people?

29.                     Evidence suggests that careers guidance has the potential to broaden and raise aspirations.[61] Access to good quality careers guidance may be especially important to young people with special educational needs and disabilities (SEND) given the additional barriers in accessing the workplace, and evidence that fewer teenagers with special education needs (SEN) felt they would stay on in full-time education post-16, go on to university, or aspire to professional or managerial occupations.[62]
30.                     There have been various reforms in recent years to improve the provision of careers advice, including the introduction of the Gatsby benchmarks (which are currently being reviewed)[63] and the introduction of statutory requirements on schools to provide encounters for pupils with training providers and colleges to discuss technical education and apprenticeships.[64] The Education Committee recently concluded that ‘the right framework [for careers education, information, advice and guidance] is broadly in place.’[65] Evidence suggests that the Gatsby Benchmarks are having a positive impact: schools with higher benchmark achievements were more likely to see pupils go into education, employment or training in the first six months after year 11.[66] There are various resources and support available for education providers related to careers provision for children with special educational needs and disabilities, including specific resources on achieving the benchmarks.[67]
31.                     However, there are concerns about progress and consistency.[68] While adherence to the Gatsby benchmarks is increasing and considered a long-term process,[69] in 2021/22 an average of just 4.86 out of 8 benchmarks were fully achieved.[70]
32.                     Of relevance is the fact that Benchmark 3: ‘addressing the needs of each pupil’, is one of the least commonly achieved.[71] This benchmark relates to the need for opportunities for advice and support to be tailored to the needs of each pupil, and for equality and diversity considerations to be embedded throughout the school or college’s careers programme. DfE’s statutory guidance on ‘Careers guidance and access for education and training providers’ sets out that while meeting the benchmarks is not a statutory requirement, all secondary schools and colleges are expected to use them to develop their careers programmes. On Benchmark 3, the guidance includes that schools and colleges should challenge disparities and stereotypes that exist to ensure that the widest range of careers are considered by all students of all backgrounds including those with SEND.[72]
33.                     The guidance states that ‘Schools and colleges should keep comprehensive and accurate careers education records.’ The guidance also states that education, training and employment destinations data should be collected and analysed, to help schools ensure the effectiveness of their career programmes.
34.                     We are aware that young people with SEN face specific barriers in relation to the provision of careers guidance. For example, DfE evidence found that children with a statement of SEN (now Education, Health and Care plan) were more than twice as likely as young people without SEN to say they had not received careers guidance in the previous 12 months.[73] The Careers & Enterprise Company report that in special schools, a lower proportion of students accessed a qualified careers advisor.[74]
35.                     Disability Rights UK report that assumptions made about children with SEND may have an impact on the range of information and opportunities provided to them. In a submission to the Education Committee, they reported that ‘ableist misconceptions’ (i.e., prejudicial assumptions about disabled student’s academic abilities) may mean that disabled students are being disproportionately encouraged to undertake BTEC courses over A-Levels.[75] The Royal Association for Deaf People raised their concerns that careers advisers were taking a dismissive view of the career aspirations of young Deaf people. This was based on reports of young people stating that careers advisers did not think they could do the job they wanted.[76]
36.                     Access to careers guidance may also be affected by a lack of practical information and issues with accessibility. The National Deaf Children’s Society (NDCS) point to a lack of deaf awareness within the provision of advice.[77]  There are also concerns about the provision of information regarding employment and equality rights, such as the duty to make reasonable adjustments and information on support schemes.[78]
37.                     DfE’s SEND improvement plan recognises that while there is some excellent SEND provision in further education, senior leaders do not always understand their role in preparing young people with SEND for adulthood. This can lead to careers advice being delivered by staff with no specific or additional training.[79]
38.                     Children not in school or college, such as those in elective home education (EHE) or not in education, employment or training, may also face difficulty accessing careers guidance.[80] Data shows an increase in the number of children and young people with EHCPs receiving home education between 2021 and 2023.[81]  We are aware of a pilot considering additional support for young people not in school or college, and look forward to the outcome of this work.[82]
39.                     Finally, Gatsby Benchmark 6 relates to gaining experiences of the workplace and employer encounters, which historically have presented additional barriers for young disabled people.[83]We are aware of the further investment in the UK Government’s Supported Internships Programme, which aims to support young people with an EHCP to move into employment.[84] However, Disability Rights UK and DAN have noted that some apprentices/stakeholders are concerned about the provision of information, and difficulties relating to accessible transport and access to equipment.[85] Action is required to ensure that employers participating in the Supported Internships Programme understand their obligations under equality law.
40.                     Recommendations:
1. The UK Government should support schools to ensure that data on careers guidance and access to providers is collected and analysed on experience and destination outcomes for all protected characteristic groups, including disaggregation by impairment type. We recommend that the statutory guidance on careers guidance and access for education and training providers should be amended to include reference to the Public Sector Equality Duty and the duty to make reasonable adjustments, to support schools in developing and delivering this provision and meeting their legal obligations towards young disabled people and other protected characteristic groups.
2. The Department for Education should ensure that schools and colleges have adequate support and resources to enable them to meet the Gatsby benchmarks.
3. The UK Government’s planned Strategic Action Plan for Careers should include specific measures to ensure that accessible and tailored careers guidance is available to all young people, including disabled young people.

Question 4 - How far do employment support mechanisms such as Access to Work or Disability Employment Advisors meet the needs of young disabled people entering the job market for the first time? How could these services be improved?

Access to Work

41.                     The Access to Work Scheme has been criticised for creating unnecessary practical barriers that prevent disabled people from accessing support that meets their needs. A 2023 report from the Work and Pensions Committee found that the scheme was overly bureaucratic and outdated, with no option to submit renewals and new claims online, and a lack of assistance for jobseekers.[86] Stakeholders also report delays with processing renewals and new claims, compromising individuals’ ability to secure or maintain employment.[87] Although the scheme has been in place for several years now, there are also concerns that Access to Work may not be sufficiently well-known among employers or disabled people.[88]
42.                     The UK Government has taken steps to increase Access to Work applications in recognition of the challenges disabled peoples face, and is exploring further options to simplify and streamline the scheme[89] and to actively promote it to young disabled people.[90] This includes a ‘Health Adjustments Passport’ pilot to support disabled undergraduates in their final year with the transition into employment, delivered by Manchester Metropolitan University and Wolverhampton University.[91] In January 2023, the Minister for Work and Pensions, Tom Pursglove, confirmed in a written Parliamentary Answer than an evaluation of this pilot has been published by universities.[92] However, neither the evaluation nor its findings appear to be publicly available. 

Disability Employment Advisors

43.                     Disability Employment Advisors (DEAs) provide up-skilling and support to work coaches within the Jobcentre Plus network. In their 2021 Disability employment gap report, the Work and Pensions Committee recommended that the DWP keep the number of DEAs under review and commit to recruiting additional DEAs if demand rises, while also ensuring that any training that Jobcentre Plus staff receive is not just generic but covers the needs of people with specific impairments.[93]
44.                     As a public body, Jobcentre Plus must ensure its strategies for supporting service users in finding, staying and progressing in work comply with the Public Sector Equality Duty (PSED) and the duty to make reasonable adjustments. To do so, DEAs must tailor their advice to address the specific needs of people sharing protected characteristics defined by the Equality Act 2010, including the needs of disabled job seekers. We welcome the Government’s commitment to ensuring that every work coach, in every Jobcentre, continues to have access to a DEA,[94] but steps must be taken to ensure the advice DEAs are providing to work coaches is specific and tailored to the needs of disabled people.
45.                     Recommendations:
1. We recommend that the evaluation of the Health Adjustment Passport pilots delivered by UK universities be published to determine whether Adjustment Passports meet the needs of young disabled people in their final year of university. If the findings show that they do, Adjustment Passports should be made available to all disabled young people making this transition.
2. Disability Employment Advisors and Jobcentre Plus work coaches must receive targeted training that covers the barriers disabled job seekers face and the needs of specific impairment groups. It may also be beneficial to consider whether age-specific training for Jobcentre Plus staff could improve the support that DEAs and Work Coaches provide to young disabled people who are making the transition into employment for the first time.

Question 6 - How accessible are careers in public services to young disabled people when they are first entering the job market? Are there public services which very effectively recruit disabled people, and services where significant improvement is needed?

46.                     As noted in the Annex, all public bodies (and those carrying out public functions such as delivering services on behalf of public bodies) are required by the Public Sector Equality Duty to proactively give appropriate consideration (due regard) to the need to: eliminate unlawful discrimination, harassment and victimisation; advance equality of opportunity between people who share protected characteristics and those who do not; and foster good relations between people who share protected characteristics and those who do not. This includes all areas of employment, including recruitment.

Question 7 – How effective are government programmes which support or encourage employers to employ disabled people, particularly young disabled people? Does this differ by condition or disability? How could they be improved?

47.                     The UK Government has several initiatives designed to support or encourage employers to employ disabled people, including Access to Work, Disability Confident and the Health is Everyone’s Business Strategy. The UK Government also runs a ’Youth Offer’ designed to help 16–24-year-olds find a job, apprenticeship or other work-related training.[95]
48.                     However, these schemes are generic and there is a lack of bespoke support for young disabled people. For example, the UK Government’s ‘Kickstart’ scheme, which ran between 2020 and early 2023 and targeted young people aged 16-24, was criticised for not responding to the needs of young disabled people.[96] The UK Government’s own evaluation found that young people with health conditions were more likely to face ’multiple difficulties‘ throughout the Kickstart process and acknowledged the need for greater help and support for this group in any future programme design.[97]
49.                     One longstanding challenge has been the sufficiency of the DWP’s collection of Universal Credit data. Improved data would help inform targeted support for young disabled people. We note that the Work and Pensions Committee previously criticised deficiencies in the collection and storage of Universal Credit claimant data, stating that the Department for Work and Pensions was unable to monitor the extent to which Kickstart facilitated participation by young disabled people.[98] 
50.                     More broadly, there is little understanding of how effective many existing government programmes are in terms of improving labour market outcomes for disabled people. For example, the Disability Confident Scheme launched in 2016 to encourage employers to employ disabled people but, as the Work and Pensions Committee point out in their 2023 report, there are concerns that growing numbers of Disability Confident accredited employers have not led to improved employer attitudes or working conditions for disabled people.[99]
51.                     In our August 2023 report to the CRPD Committee, ‘Progress on disability rights in the United Kingdom’, we recommended that the UK Government should assess the effectiveness of the Disability Confident Scheme on improving employment outcomes for disabled people to inform future policy development.
52.                     Disability workforce monitoring and reporting are useful transparency measures and can make employers publicly accountable for their disability employment and pay gaps. In addition to the programmes listed above, the UK Government introduced the Voluntary Reporting Framework for Disability and Mental Health in 2018, which provides a helpful standard for employers to monitor and report on disabled workers. However, this is a voluntary scheme[100] and there has been no assessment of either take up by employers or the effectiveness of the current framework on improving outcomes for disabled workers. The Government consulted on mandatory Disability Workforce Monitoring in late 2021 but has not yet published its response.
53.                     Recommendations:
1. The UK Government should take immediate action to improve its data collation so that future support schemes can be better tailored to young disabled people, in line with obligations under the PSED.
2. The Government should undertake a full evaluation of the Disability Confident scheme. This should explore how effective the scheme has been in increasing the proportion of disabled people in work, and on the pay, progression, and retention of disabled workers, and identify any improvements needed. We also recommend that the UK Government should assess the effectiveness of the Voluntary Reporting Framework.[101]
3. The Government should introduce a mandatory duty on employers with more than 250 staff to monitor and report on disability in the workforce, appropriately disaggregated by impairment type and other protected characteristics such as age, as a step towards understanding and addressing barriers facing young disabled people transitioning into employment.
4. Any new or updated employment programmes targeted at disabled people must be co-produced by disabled people with Deaf and Disabled People’s Organisations involved in their implementation, in line with the UK Government’s obligations under the UN CRPD Article 4 (3).

Question 7b - What actions could employers be taking without Government support? What barriers prevent them doing so?

54.                     As outlined in the Annex, employers have a duty under the Equality Act 2010 to protect people from unlawful discrimination, harassment and victimisation on the basis of nine protected characteristics, including disability and age. Employers also have a duty to make reasonable adjustments where disabled people are at a substantial disadvantage. The Commission has detailed guidance for employers on how to implement reasonable adjustments and take steps to avoid unlawful discrimination, harassment and victimisation.
55.                     Despite this, a recent survey by the Business Disability Forum found that 1 in 8 disabled people wait over a year to get the adjustments they need, and only 10% described the process of requesting and receiving adjustments as ‘easy’.[102] Leonard Cheshire found that 66% of employers they surveyed said the costs of workplace adjustments are a barrier to employing a disabled person.[103]
56.                     We expect that the forthcoming day-one right to request flexible working, provided in the Employment Relations (Flexible Working) Act 2023, will enable more disabled people to access, progress and remain in employment. Employers will be required to consider what flexibility they can offer, including as a reasonable adjustment for disabled workers. The Commission has provided advice to the Department for Business and Trade and Acas on how flexible working can support disabled workers and we hope to see this reflected in Acas’ forthcoming updated Code of Practice on flexible working.
57.                     Additionally, the Equality Act 2010 permits employers to take measures to improve equality for people who share the protected characteristic of disability, when compared to non-disabled people. Where an employer wants to achieve equality of opportunity between disabled people with different types of disability or impairment, the positive action provisions in sections 158 and 159 of the Equality Act 2010 may be utilised. For example, if an employer has evidence to show that young disabled people with a specific type of impairment are underrepresented in their workplace, they can use positive action to increase that number. Examples of permissible positive action include stating in recruitment advertisements that applications from people with a particular disability are welcomed and providing targeted work experience or open days.[104]
58.                     Recommendations:
1. As part of its wider preparations to promote the day-one right to request flexible working, we encourage the UK Government to actively promote public understanding that flexible working can be used as a reasonable adjustment.
2. We recommend that the UK Government promotes understanding and use of the ability to take action to support disabled people generally, and positive action for disabled people with particular impairment groups specifically, among employers through Disability Confident and other employer engagement activity.

Question 8 - How effectively are the rights of disabled people upheld and enforced in the workplace? What barriers do young disabled people face in accessing the support (including legal support) that they need and are entitled to? How could enforcement mechanisms be improved? a) Is the present legal framework sufficient, in theory and in practice, in dealing with disability discrimination faced by young disabled people transitioning from education to work?

59.                     The Equality Act 2010 provides extensive protection from disability discrimination. The duty to make reasonable adjustments is also a powerful tool, requiring employers to take reasonable steps to ensure that disabled people are not substantially disadvantaged within the workplace. Section 15 of the Equality Act 2010 also provides protection from discrimination arising from disability.
60.                     Disability discrimination, including failure to make reasonable adjustments, is the most prevalent form of discrimination in claims made to Acas and employment tribunals.[105] However, enforcement of Equality Act protections may be particularly difficult for young disabled people.
61.                     The onus is on the individual worker to enforce their rights through the employment tribunal system. In theory this should be sufficient to protect young people who experience disability discrimination at work. Individuals do not need to be legally represented to bring a claim and are not liable for costs if they lose. However, it is unlikely that young disabled people, particularly those at an early stage in their career, would consider bringing a claim. This is because individuals are unlikely to either be aware of their rights, confident enough to bring a claim or have the financial means to do so.[106]
62.                     In addition, an individual who wants to take a claim to tribunal must do so within three months less one day since the incident of workplace discrimination or harassment. We believe that this places a barrier to redress, not just for disabled people, but for other individuals at risk of discrimination or harassment including new mothers and those who experience workplace sexual harassment.
63.                     The Commission has a range of enforcement and litigation powers set out in the Equality Act 2006, including the power to undertake investigations (section 20), issue unlawful act notices (section 21), and enter into agreements (Section 23).[107] We are also able to provide legal support (section 28) for Equality Act 2010 claims of discrimination and harassment.
64.                     In recent years, the Commission has undertaken projects to provide targeted legal support to individuals experiencing discrimination in areas where we have particular concerns. For example, we currently operate a race legal support fund providing funding and legal assistance to tackle race discrimination and harassment.[108]  We have previously run similar legal support projects to tackle disability discrimination in education and on public transport. However, given that the Commission has experienced a real-terms funding cut of over 30% since 2012, additional resource is required to enable us to continue to carry out our full statutory mandate and meet expanding regulatory obligations.
65.                     Young disabled people can access free advice from the Equality Advisory and Support Service and from Acas. In addition, the Commission has detailed guidance for employers on how to implement reasonable adjustments and take steps to avoid unlawful discrimination, harassment and victimisation. Acas also provides extensive guidance for both workers and employers on employment discrimination matters. The Commission also provides a range of disability advice and guidance, including for individuals, employers and the public sector.
66.                     The Commission also works to ensure that schools support a rights-respecting society, with all pupils learning about rights and the importance of respecting difference, to promote understanding between different groups. We welcome that the UK Government’s statutory guidance on education, relationships and sex education (RSE) and health education for England includes teaching about ‘the legal rights and responsibilities regarding equality (particularly with reference to the protected characteristics as defined in the Equality Act 2010).’[109]
67.                     We also support human rights education which encompasses education about human rights; through human rights (by organising learning and teaching in a way that respects the rights of both teachers and learners); and for human rights (by empowering children to enjoy and exercise their rights and to respect and uphold the rights of others). In research conducted by the Commission, schools that took a human rights-based approach reported various benefits including reductions in prejudice.[110]
68.                     Recommendations:
1. The UK Government should extend tribunal time limits as a matter of urgency.
2. The UK Government should address the real-terms funding cut the Commission has faced by increasing funding to enable us to continue to carry out our full statutory mandate and meet expanding regulatory obligations.
3. The UK Government should support schools to adopt a rights-based approach and ensure that teacher training and continued professional developments includes mandatory equality and human rights education, including the right of the child to be heard and to have their opinions taken into account.
4. The UK Government should actively publicise the availability of legal aid for discrimination cases and the ways in which it can be accessed (including through working with the advice sector),and monitor the effectiveness of this work to promote awareness, adapting it where necessary to ensure maximum impact.

21 September 2023

Annex: How equality and human rights apply to education and employment

Equality Act 2010

1. The Equality Act 2010 (the Act) protects people from unlawful discrimination, harassment and victimisation on the basis of nine protected characteristics including disability and age. The Act places duties on employers, service providers, education providers and those carrying out public functions (and others). It prohibits direct discrimination, indirect discrimination, harassment, and victimisation and imposes requirement to make reasonable adjustments where disabled people are placed at a substantial disadvantage. Disability discrimination is asymmetrical (i.e. a non-disabled person will not be discriminated against if they are treated less favourably than a disabled person) therefore it is not unlawful to treat disabled people more favourably than non-disabled people. With regards to direct age discrimination, this can be justified if the organisation or employer can show that there is a proportionate and legitimate reason for the discrimination.
2. Section 15 provides protection for disabled people from unfavourable treatment because of something connected with their disability, known as ‘discrimination arising from disability’. This differs from direct discrimination where a person is treated less favourably because of disability itself.
3. Part 5 of the Act covers discrimination, harassment and victimisation in employment and work-related activities. It is based on the principle that people with the protected characteristics set out in the Act should not be discriminated against in employment, when seeking employment, or when engaged in occupations or activities related to work, such as work-based training.
4. Part 6 of the Act makes it unlawful for schools to discriminate against a pupil in the way they provide education, afford access to a benefit, facility or service, by excluding a pupil or subjecting them to any other detriment. It also makes it unlawful to harass or victimise an applicant or pupil.[111]
5. The duty to make reasonable adjustments requires schools and education authorities to provide reasonable adjustments for disabled pupils, which relates to provisions, criteria and practices and auxiliary aids and services. Schools also have a duty to plan better access for disabled pupils generally, including in relation to the physical environment of the school. Likewise, the duty to make reasonable adjustments applies to employers of all sizes, including a duty to remove or alter physical barriers. The duty applies in recruitment and during all stages of employment, including dismissal, and may apply after employment has ended.
6. Section 149 of the Act, the Public Sector Equality Duty (‘the PSED’) places a positive duty on public bodies (and those carrying out public functions such as delivering services on behalf of public bodies) to proactively give appropriate consideration (due regard) to the need to:
7. eliminate unlawful discrimination, harassment, victimisation and other conduct prohibited by the Equality Act 2010;
8. advance equality of opportunity between people who share protected characteristics and those who do not, and
9. foster good relations between people who share protected characteristics and those who do not.
10.                     One way public bodies, including Government departments and education providers can ensure they meet their obligations under the PSED is to collect comprehensive and robust data that will help them identify any patterns in experiences based on protected characteristics. This can then be used to inform actions to address any disadvantage experienced by people with particular protected characteristics.
11.                     The Act also contains positive action provisions,[112] which are voluntary measures that enable employers and other duty bearers to take steps to address the underrepresentation of particular groups in certain circumstances. In the case of disability, the provision permits action in relation to people with a particular type of impairment, when compared to disabled people with a different type of impairment. Examples include undertaking targeted advertising or open days aimed at young people with disabilities; providing additional support or training aimed at meeting particular needs, or reserving places on training courses for people with a protected characteristic where there is low participation from that group.

Human Rights Act 1998
 

12.                     The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. The Act includes the following rights:
13.                     Article 2 of Protocol 1:  Right to education, which provides that everyone has the right not to be denied access to the educational system.
14.                     Article 14: Prohibition of discrimination. In the application of the other Convention rights, people have the right not to be treated less favourably because of their sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status, unless there is an ‘objective and reasonable justification’ for the difference in treatment.

International obligations
 

15.                     The UK has ratified several international human rights treaties with provisions of relevance to the remit of this inquiry. The rights in these treaties represent binding obligations in international law, which means that the UK has pledged to make sure its domestic laws and policies comply with them.
16.                     The UN Convention on the Rights of the Child (CRC) includes:
1. Article 23: disabled children have the right to enjoy ‘a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community’. State assistance should include ensuring access to education, training, health care services, and preparation for employment.
2. Article 2: relates to non-discrimination.
3. Article 3: the best interests of the child should be a primary consideration in all actions concerning them.
4. Article 28: sets out that states must ‘make educational and vocational information and guidance available and accessible to all children’.
5. Article 29: states that education should be directed to the development of the child to their fullest potential.
17.                     The UN Committee on the Rights of the Child, the body that monitors implementation of this Convention, recently made the following two broad recommendations for the UK Government which are of relevance to this inquiry:
1. Strengthen support for the social integration and individual development of children with disabilities, including by providing capacity-building to professionals working with and for children on the rights and specific needs of children with disabilities, and ensuring their access to personal assistance, rehabilitation and assistive devices.
2. Ensure the right of children with disabilities to be heard in all decisions that affect them.
18.                     The UN Convention on the Rights of Persons with Disabilities (CRPD) includes:
1. Article 4 which sets out the need for close consultation with and active involvement of disabled people, including children, in the development and implementation of relevant legislation and policies.
2. Article 7 which sets out that children with disabilities shall have the full enjoyment of human rights and fundamental freedoms on an equal basis with other children, that their best interests shall be a primary consideration, and the right to express their views on matters affecting them.
3. Article 27 which relates to work and employment including prohibition of discrimination and protecting the rights of disabled people to just and favourable conditions of work, on an equal basis with others.
19.                     The International Covenant on Economic, Social and Cultural Rights (ICESCR) includes:
1. Article 6 which recognises the right to work, including the right of everyone to the opportunity to gain a living by work freely chosen or accepted.
2. Article 7 which sets out the right to just and favourable conditions of work for all including a decent living; safe and healthy working conditions; rest, leisure, reasonable limitations of working hours and paid holidays.