TUC – Written Evidence (EQD0055)
1.1 Q1 Has the Equality Act 2010 achieved the aim of strengthening and harmonising disability discrimination law? What has been the effect of disability now being one of nine protected characteristics?
1.1 The TUC was one of the organisations that campaigned for a single Equality Act to replace the complex mass of legal provisions that had previously existed and which had developed in a piecemeal way over many decades. We believed that having a single Act with common principles and definitions across the protected characteristics would improve understanding of equality law by employers and individuals. We also saw it as an opportunity to strengthen the law and level up in some instances. However, where there were strong reasons for treating a protected characteristic differently then, we argued, unique provisions should be retained like the reasonable adjustment duty and the asymmetric protection for disability.
1.2 As a result of harmonising the law, the concept of indirect discrimination was extended to disability. This enables a more collective approach to tackling provisions, criteria and practices that are likely to put groups of disabled people at a disadvantage rather than purely relying on the individualised approach of the reasonable adjustment duty. The harmonised definition of direct discrimination made clear that discrimination by association with a disabled person was possible (incorporating the ECJ’s decision in the Coleman v Attridge Law case). It also meant that someone who was perceived as being disabled could bring a direct discrimination claim whereas previously this was not the case. This helps challenge the prejudice disabled people face too. Other benefits from harmonisation include extending the protection from disability-related harassment beyond the employment field to areas like education and goods and services provision.
1.3 The Act also strengthened the law for disabled people in a number of ways, for example, it replaced the previous ‘disability-related discrimination provision’ that had been weakened by the very narrow interpretation given to it in the Malcolm v Lewisham Borough Council case with a new ‘discrimination arising from disability’ provision and it introduced a ban in s.60 on asking health-related questions at recruitment stage except for a limited range of circumstances.
1.4 The area where we believe the move to a single act weakened the law for disabled people was in the creation of the single public sector equality duty (the change in the political and economic climate also harmed public authorities’ implementation of the PSED – see response to Q5). The specific duties legislation introduced by the coalition government in 2011 for England and GB-wide public authorities only requires equality information to be published and for employers to identify ‘at least one’ equality objective across nine protected characteristics. There is no longer a requirement to publish a written disability equality scheme setting out what actions the public authority intends to take to promote disability equality and there is no longer a requirement to involve disabled people in plans to promote equality. The response of one local union officer to the TUC submission to the PSED Review in 2012 sums up the views of many: “The specific duty to involve disabled people that was in the Disability Equality Duty was particularly important for making sure some of the most excluded people in society were able to fully participate in consultation and engagement processes... [T]he cuts to the public sector and reduced duty means it is not always carried out as effectively as previously.”
2.1 Q2. Are there gaps in the law on disability and equality not covered by the Equality Act 2010 or other legislation?
2.1 UK ratification of the UN Convention on the Rights of Persons with Disabilities means that domestic law needs to be read to comply with it. There should be a review of existing legislation to ensure that it is amended where necessary to ensure such compliance and that it is taken into account when developing public policy. The UNCRPD was explicitly founded in the social model of disability whereas the DDA 1995 (and its successor versions) culminating in the EA 2010 were all drafted based on the traditional medical model of disability. While the TUC believes that twenty years of judicial interpretation and the new structure imposed by having a single equality act have led to some reduction in the distinction in practice between medical and social model approaches, nonetheless the EA 2010 replicates the medical model approach. Under the current definition, some disabled people struggle to prove they are disabled, especially those with fluctuating conditions such as many mental health conditions. Replacing the definition with a social model approach would have many benefits both for individual disabled people and for challenging prejudices that lead to discrimination in wider society. Article 1 of the UNCRPD has the following definition: “Persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” The TUC has also recently produced guidance for trade unions to promote the social model approach (https://www.tuc.org.uk/equality-issues/disability-issues/trade-unions/union-issues/new-guide-will-help-unions-promote).
3.1 Q3. Are the reasonable adjustment duties known and understood by disabled people, employers, service providers and others who have duties under them?
3.1 Although there are examples of good practice, the TUC knows of many cases in the field of employment that demonstrate that understanding of the duties is at best patchy and sometimes absent, leaving disabled workers facing the stress of a prolonged legal battle as the only way to assert their legal rights. Problems often arise at line management level where managers have not been trained properly, rather than at higher level where policy is agreed.
3.2 One union’s survey of disabled members found cases where: (a) there were delays in implementing, or a failure to implement, reasonable adjustments; (b) there was no effort to understand that each disabled worker’s impairment may be unique; and (c) disabled workers were being pressurised to go part-time rather than deal with the barrier/disadvantage that they were facing. Two examples from disabled members to highlight the kind of issues arising:
I have a number of chronic conditions... my request for reasonable adjustments was viewed as “annoying”. There was no solution on offer so I had to move to a part-time contract.
My 40% deafness makes my work more tiring... as I have to strain my attention to teach [or]... at meetings. I have never received formal support from my manager or HR.
3.3 Another union has collated examples where its members were entitled to reasonable adjustments and where Occupational Health had made recommendations but the employer was not co-operating in implementing them. One example among many to highlight the problem:
Member had spinal surgery... OH recommended suitable chair, trolley for folders, car parking space close to school... [employer] declined to implement any recommendations ... [and] seeking to dismiss on grounds of capability.
3.4 The TUC has collected many examples of employers failing to make appropriate adjustments for people with mental health problems. These examples are from every sector of the economy but are particularly common in high-stress professions such as teaching. Every education union has produced numerous case studies showing a high percentage of staff face or have faced mental health issues arising from their work or from domestic crises. The cases show employers failing to react in a timely fashion to consider what adjustments could be made to remedy the disadvantage and avert a crisis. In many of these cases, had it not been for the intervention of the union, the situation would have deteriorated and led to loss of employment. People with mental health conditions have very low employment rates (see p.21 of TUC report on ‘Disability and Employment’ https://www.tuc.org.uk/sites/default/files/DisabilityandEmploymentReport.pdf) and face considerable prejudice. Most workers are fearful of revealing mental health conditions to their actual or a potential employer and failing to comply with a request for a reasonable adjustment, just adds to the fear, stress and stigma associated with these impairments.
3.5 Thousands of individual cases have also been reported by unions on the failure of employers to make adjustments to their sickness absence policies for disabled workers. Employers’ failure to distinguish between absence resulting from sickness and absence related to disability results in many workers being dismissed. This is because disability-related absence is added to sickness absence which triggers disciplinary proceedings against the worker. This is despite the statutory Code of Practice on Employment mentioning “disability leave (or disability adjustment leave)” in its list of possible adjustments that would enable workers to return to their jobs after treatment and recovery rather than be dismissed. One union reported that an employer in the prison service was time limiting reasonable adjustments to aid return to work to 12 weeks, regardless of the circumstances of the individual case.
3.6 Unions have also reported employers failing to adjust their appraisal and performance management systems, for example, by adjusting targets to account for disability-related absences. This results in disabled employees being marked down or not being promoted despite achieving high ratings for required levels of skill.
4.1 Q4. Should the law be made more explicit on what constitutes a reasonable adjustment? If so, in what way?
4.1 In trade unions’ experience the reasonable adjustment duty is one of the most important provisions in EA 2010 but employers and sometimes members of the judiciary seem to struggle with the concept of treating disabled people more favourably to achieve equality in practice. A social model approach to defining disability may help change the mindset that equality is about treating everyone the same. One thing the TUC has campaigned for in terms of amendments to the EA 2010 is for it to be made explicit in the Act itself that disability leave constitutes a reasonable adjustment in the employment context rather than it just being in the Code of Practice. In addition, much more resource needs to go into training and raising awareness of the reasonable adjustment duty and the funding available to support adjustments through Access to Work.
5.1 Q5. How effective has the public sector equality duty been in practice? How do you assess its contribution to the aims of the Equality Act 2010?
5.1 In the TUC’s view the PSED and the predecessor duties were a very important and welcome advancement in equality law. Trade unions know how difficult it is for individual victims of discrimination, particularly those who are disadvantaged or in a minority in a workplace, to assert their rights and ensure compliance with the law. The PSED clearly places the onus on organisations to take steps to prevent or stop discrimination and to advance equality without individuals having to make retrospective complaints.
5.2 The TUC surveyed public sector unions shortly after the introduction of the Disability Equality Duty in 2007 and received responses from representatives in employers representing a quarter of a million workers. At this early stage the evidence was that where the employer had taken the duty seriously and had engaged with disabled people, and with trade unions, there had been significant positive progress in making changes to employment practices and service provision. Where the employer had not taken the duty seriously, or had ignored it, there had been little change.
5.3 In responding to the PSED Review in 2012, the TUC received many examples from trade unions who were frustrated that an organisation was not complying with the PSED and there seemed to be little that they could do to make them comply. There were a few examples where unions were able to successfully use the new PSED to challenge existing or proposed practice and to get change. For example, one union reported how they had used the PSED to push a civil service employer to analyse why disabled employees were more likely to get stuck in a redeployment pool and to agree that changes be made, in this case more central funding for reasonable adjustments, so that other parts of the organisation were more open to taking disabled people from the pool. However, it has to be said that such examples were rare, especially in a climate where people perceived the PSED to have less force because of the weaker specific duties legislation introduced under the coalition government in 2011, the attacks on the PSED and related practices like equality impact assessments by the Prime Minister and by local government ministers, the weakening of judicial review and the cuts in resources and weakening of the EHRC.
6.1 Q8 How effective has the EHRC been in exercising its regulation and enforcement powers, and what contribution has this made to the impact of the Equality Act 2010 on people with disabilities?
6.1 The EHRC has used its powers to advance disability equality. For example, it has carried out an important inquiry into disability-related hate crime, it has intervened in the Independent Living Fund judicial review and in Unison’s challenge to employment tribunal fees, and it has supported the recent PCS case on reasonable adjustments and sickness absence (Griffiths v Secretary of State for Work and Pensions).
6.2 However, the EHRC has not been as proactive as the former Disability Rights Commission. It has had greater pressure on its resources with a much wider remit and funding cuts. When the DRC was in existence, its helpline was well advertised and received over 100,000 calls a year (e.g. see DRC Annual Report 2006-07). A Government Equalities Office review of the EHRC helpline in 2011, found that it received about a quarter of the volume of disability calls (although these still made up more than half of all calls received) that the DRC’s had. The same level of resource had not gone into advertising and promoting the EHRC helpline. The EHRC’s helpline was closed in 2012 and the coalition Government commissioned a new Equality and Advisory Support Service. There are no public statistics on the actual number of calls received by EASS but publicly available data on the breakdown of calls shows that disability still makes up the majority (EASS Engagement Newsletters). The decision of the Coalition Government to close the EHRC’s helpline has undermined its strategic casework and litigation as it no longer has the direct contact and easily accessible intelligence from dealing directly with victims of discrimination
7.1 Q10. Are current enforcement mechanisms available to private individuals (through Employment Tribunals, County Courts and, in Scotland, Sheriff Courts) accessible and effective for people with disabilities, employers and providers of goods, facilities and services?
7.1 Disabled claimants seeking to use Employment Tribunals face additional obstacles that are not always understood. In particular, as unions have informed us, members with mental health issues may require adjustments to the process to enable them to secure a fair hearing. Such adjustments are not always made. The consequence of this, and the prospect of cross examination by a lawyer, can deter a claimant with mental health problems from pursuing a justified claim. Unions have also drawn attention to problems with physical access at some offices.
7.2 The introduction of fees of £1,200 to get a discrimination case lodged and heard at tribunal has contributed to a large fall in claims. Comparing Q1 2013 with Q1 2014, the number of disability claims going to tribunal halved, while as all other evidence suggests, there has been no similar reduction in cases of disability discrimination. The TUC has argued repeatedly that ET fees are a major barrier to justice and must be scrapped.
8.1 Q`11 Are there other legislative or non-legislative measures that would improve implementation of the Equality Act 2010 in respect of disability?
8.1 Continuing reductions to entitlement to in-work benefits have impacted severely on many low-paid workers and these include disabled workers with support needs. The changes to eligibility criteria for higher rates of Disability Living Allowance being implemented through the switch to Personal Independence Payment have caused hardship for many disabled workers.
8.2 Despite the promises made in 2011, when the government accepted the recommendations of the Sayce review of specialist disability employment programmes, there has been only a modest increase in the funds allocated to Access to Work. The TUC argues for a substantial increase in funding for AtW, recognising that this is a cost-effective route to ensuring that more disabled people can access work or remain in work, generating tax revenues as a result, instead of becoming recipients of benefits. Alongside the limited extension of funding, AtW has this year initiated a system of capping grants paid out, with significant negative impact on a relatively small number of workers who relied on AtW to fund sign language interpreters and workers who need to use taxis to get to and from the workplace. The justification is that this enables the fund to be spread among more people: despite the fact that DWP statistics for use of the fund suggest very little change in the average number of recipients of funding.
8.3 There is continued evidence of a lack of awareness among many employers of the potential of AtW to assist them to recruit and retain disabled workers. But an awareness raising campaign must necessarily be accompanied by a commitment to increase the size of the fund, a step that would generate more revenue than it would cost.
8.4 The power that was introduced in s.124 of EA 2010 enabling employment tribunals to make recommendations following a finding of discrimination that would benefit others who might be at risk of discrimination should be reinstated. The Coalition Government repealed this power following its ‘Red Tape Challenge’ despite the fact that in the short time it was in operation employment tribunals had used it to make sensible recommendations that employers change their practices and learn lessons from discrimination cases, for example, by ensuring that line managers and HR staff are trained on the requirements of EA 2010 and disability (e.g. see Crisp v Iceland Foods). One of the criticisms of the power made by the Coalition Government was that any recommendations made lacked force. This was a criticism the TUC made when the power was first proposed in EA 2010 and could have been remedied by introducing stronger enforcement mechanisms for recommendations rather than repealing the power altogether.
8.5 The TUC would also like to see the statutory discrimination questionnaires that were in s.138 of EA 2010 (with similar provisions in the preceding discrimination legislation) reinstated. In responding to the coalition Governments consultation on repealing these questionnaires the TUC provided examples from unions of how they were relied on by individuals to help them establish whether or not they had a discrimination claim that was worth pursuing at tribunal. The questionnaires also often prompted employers to settle claims once they had been served with a questionnaire and considered the evidence they were being asked to provide. For example, the shopworkers union Usdaw gave us this example:
A member with learning difficulties with long service at a major supermarket was dismissed from her checkout role on performance grounds without any consideration of reasonable adjustments. The union assisted the member in drafting a questionnaire and as soon as it was received by the employer, the employer’s solicitors contacted the union and the case was settled. Without the questionnaire such an early settlement would not have been possible and additional costs would have been incurred by all parties and the tribunal service.