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Towards Inclusion: TUC Briefing

Issue date

TUC Briefing

Towards Inclusion - civil rights for disabled people

The government response to the DRTF

Introduction

The government’s Disability Rights Task Force published its report, 'From Exclusion to Inclusion', in December 1999, making 156 recommendations for legal and other action to improve the civil rights of disabled people. The government had already acted in response to the Task Force’s first proposal, to establish a Disability Rights Commission, which began functioning in April 2000. In December 2000, the Special Educational Needs and Disability bill was introduced into the House of Lords, in response to other Task Force recommendations. In March 2001, the report 'Towards Inclusion - civil rights for disabled people' was published by the Department for Education and Employment (DfEE) with the government’s response to the remaining recommendations. This Briefing summarises the report and gives the TUC’s views.

Consultation Period

The government is consulting on every proposal in the report until 8 June 2001 using a questionnaire available on the DfEE website, and responses can be sent online, or by post to:

DRTF Consultation, Freepost CY 1199, PO Box 2001, Burgess Hill, RH15 8BR.

Summary

Broadly, the TUC welcomes the proposals made to improve the Disability Discrimination Act (DDA) and to increase civil rights for disabled people. The combined effects of introducing all the measures proposed would be of very significant benefit to very many disabled people. It remains the position of the TUC, however, that the DDA is fundamentally flawed in its approach and needs to be replaced with civil rights legislation based on the social rather than the medical model of disability.

The proposal to defer the abolition of the small employers’ exemption until 2004 is deeply disappointing and the TUC urges respondents to the consultation to press for the government to change its mind and to bring forward the date to the earliest possible.

This Briefing concentrates on the employment-related recommendations from the Task Force. These are summarised, followed by the government’s response in the form of a bullet point, and the TUC’s view follows in bold. Where no comment is made it may be assumed that the TUC supports the proposal.

The Task Force recommended that the definition of disability in the DDA be extended to cover HIV infection from diagnosis, and cancer from the point at which it has substantial consequences. It also recommended that people certified as blind or partially sighted be presumed to meet the DDA definition of disability. The Task Force further recommended that guidance to tribunals be amended to clarify the intention of the law in defining what constitute 'normal activities', for the purpose of determining whether an applicant is disabled, and the importance of tribunals disregarding disabled peoples’ coping strategies.

  • The government accepted the recommendations to extend the definition and intends to legislate as soon as time allows. On cancer, the definition of 'substantial' will be 'more than minor or trivial' and would include people having outpatient treatment. The government proposed that registration with a local authority, or certification with an ophthalmologist, as blind or partially sighted, will count as conclusive evidence of disability. (Paras. 3.11-12)

  • Since the Task Force published its report, tribunals have been guided by higher court decisions in cases to ignore coping strategies when assessing that someone has a disability under the DDA. However, the government has undertaken to revise the statutory guidance after the law has been changed. (Para 3.16)

  • The Task Force advised that Genetic Predisposition to a condition should continue not to be considered as a disability but that the issue should be kept under review.

  • The government is awaiting the advice of the Human Genetics Commission on the storage, protection and use of genetic information, which will be provided in 2001. The DfEE will then consider the views of the DRC and the Health and Safety Executive (para 3.20)

  • The TUC welcomes and supports these responses by the government. Although it would prefer that the DDA was replaced with civil rights legislation that was not based on the medical model of disability, the extensions proposed are helpful in increasing the number of people to be protected by the law and removing some anomalous exclusions.

The Task Force recommendations were that the provision of a defence for the employer of being able to justify failing to make a reasonable adjustment should be removed and the Code of Practice should be revised to include examples of when it might be reasonable not to make an adjustment. Further examples of reasonable adjustments should be added to the DDA, and references to the inclusion of harassment as being discrimination under the DDA needed to be strengthened.

  • The government has proposed to remove the defence of justification for failure to make a reasonable adjustment, because this defence already exists under the 'reasonableness' provisions. It will add to the list of examples given of what might constitute a reasonable adjustment training for (other) persons in disability issues or in the use of equipment, and providing support, or access to external support, for a disabled person. The DRC will be asked to take into account these changes, and the need for a clearer statement that harassment constitutes discrimination, when it revises the Code of Practice. (Paras 3.26-28)

Threshold , exclusions and scope

The Task Force recommended that all disabled employees should be covered by the law, and therefore proposed immediate reduction of the threshold from 15 employees to 2 by regulation, followed by the primary legislation needed to remove it altogether. Business Partners should be covered by the DDA, and the Act should be extended to include police, prison officers, fire-fighters and the armed forces (while acknowledging the need for safeguards to maintain operational effectiveness). Barristers and local councillors should also be included and the territorial scope of the law should be the same as for the Race Relations Act.

  • The government has accepted the proposal to include business partners, police, prison officers and fire-fighters, barristers and members of councils, and employees on board ships, plans or hovercrafts registered in Great Britain. (Para 34).

  • However, although the government supports the removal of the small employer’s exemption, it believes that 'it is not practicable' to end it before 2004, when it will coincide with the coming into effect of the final part of the DDA Part III duties to make premises physically accessible to service users and employees alike (Paras 3.31-2)

  • The government has also rejected the proposal to include the armed forces within the scope of the DDA (Para 3.37) on the grounds that 'decisions on military health and fitness standards are for the MOD and not for Employment Tribunals'.

  • The TUC welcomes the extension of coverage of the DDA in the areas proposed, as this will bring many thousands of jobs within the scope of the Act. However, the further delay in removing the small employers’ threshold is unacceptable. It means that 95% of all employers continue to be exempt from the law for a further four years. The TUC case is:

  • Employers are anyway protected under the DDA from the need to have to do anything 'unreasonable' to employ a disabled person.

  • The government’s Access to Work scheme offers substantial assistance to pay for adjustments.

  • The cost to business is anyway minimal. The Regulatory Impact Assessment appended to the report estimates the average cost per small business of complying with the Act as £3.92 (page 131).

Post-employment victimisation

The Task Force recommended that the same approach as will be applied under the Sex Discrimination Act should apply to disabled ex-employees in regard to victimisation on grounds of disability taking place up to six months after the end of the employment (for example, by an unjustified negative reference), allowing a claim for discrimination to be made against the former employer.

  • The government has agreed that the same changes should be made to the DDA as to the SDA, to allow former employees up to six months to bring a claim of discrimination arising from that employment, and to allow tribunals to consider accepting claims after this period it they are just and equitable (para 3.38).

  • The TUC welcomes this proposal, which removes a gap in the protection against discrimination for someone after their employment has ended.

Public Sector duties

The Task Force recommended that the public sector should have a duty to promote equalisation of opportunities for disabled people in employment, and its purchasing power should be should be used to promote compliance among contractors and suppliers. The law should be changed to allow local authority employers to have positive action schemes.

  • The government response has been to indicate that when time allows, legislation will be introduced to require public bodies to take the lead in promoting equal opportunities generally, and (on the model of the Race Relations Amendment Act 2000) to have due regard to the need to eliminate unlawful discrimination. There will be secondary legislation to set out specific duties, with enforcement being in the hands of the DRC (para 3.43). The DRC is to be asked to produce guidance in advance of legislation.

  • The government has undertaken to consult on the positive action proposal, currently barred by the 1989 Local Government Act. They have suggested a possibility of allowing a local authority to interview only disabled people (who can all meet the requirements of the job) for a vacancy.

Employment Tribunals

The Task Force recommended that Employment Tribunals be given the power to order reinstatement or re-engagement in cases brought under the DDA (or SDA or RRA), in line with provisions in the Employment Rights Act, in place of the existing power just to recommend it. It also proposed that the time limit for a claimant issuing a questionnaire be extended to four weeks, to help claimants understand the process, and that respondents be required to reply within eight weeks. Tribunals should be required to draw inferences from a failure to respond. It was also recommended that where a tribunal was hearing a DDA case, at least one of the panel should be someone with experience of disability.

  • The government has undertaken to change the law to allow tribunals to order reinstatement, to amend the time limits for questionnaires as recommended, and to require tribunals to draw inferences from a failure to reply. However they pointed out that the response of the Tribunal Service was that tribunal members receive training in all aspects of their work, so they have rejected the proposal on including someone with experience of disability and are instead asking the DRC to explore whether more needs to be done to meet the Task Force’s concerns (paras 51-2).

  • The TUC welcomes the commitment to make these changes to the powers of Employment Tribunals. There is evidence, however, that the level of understanding of disability is not as high as it should be among all ET members. The TUC therefore believes that, while of course all ET members should be trained in the law on disability discrimination, that is not the same as understanding disability in a workplace environment, and the government should adopt the same guidance for DDA cases as is currently given informally for cases of race and sex discrimination, which is that where possible someone with the relevant background should serve on the tribunal appointed for the case.

Disability Leave

The Task Force suggested that there be more emphasis in the guidance on adopting disability leave as an adjustment, as part of the government’s approach on rehabilitation and retention.

  • The government will discuss this with the DRC (para 3.55).

  • The TUC strongly supports the Task Force proposal. Disability leave can play a very important role in helping someone with an impairment, or someone injured at work, or whose condition has worsened, to have the chance to take the necessary steps that would enable them to remain in employment. This could be a major element of an approach focussed on rehabilitation and retention.

Disability-related questions

The Task Force proposed that questions about a job applicant’s disability should only be permitted in limited circumstances before a job is offered: to establish whether reasonable adjustments were required in the selection process, or to establish whether adjustments might be required for doing the job. Otherwise, they should only be permitted after a job offer had been made.

  • The government has rejected this on the basis that there is too great a risk for employers (especially small employers) of asking 'the wrong question', so instead the DRC will be asked to improve the guidance in the Code of Practice (para 3.57).

  • The TUC believes that the Task Force recommendation should be supported. It is very hard to prove discrimination at the stage of recruitment, as indicated by the very small number of DDA cases taken under this heading, and any measure to reduce the scope for employers’ discriminating would help disabled people to challenge such barriers to obtaining employment.

Pensions and Insurance

In addition to clarifying confusion between insurance benefits provided by an occupational pension scheme and group insurance schemes sections (17 and 18 of the DDA respectively) the Task Force recommended that, as with Equal Pay cases, disability discrimination claims against trustees and managers of occupational pension schemes should be heard by Employment Tribunals. It further proposed that occupational pension schemes be required to offer equal access to scheme membership for disabled people at the start of their employment, while permitting access to be restricted at a later date providing that the limitation is strictly restricted to specific impairment or condition and can be justified with reliable (e.g. actuarial) data.

  • The government accepted the recommendations dealing with clarification and the right to take a case to the Employment Tribunal (para 3.59-60) but proposed to look further at the issue of access to occupational pension schemes, as this will be investigated as part of the government’s current consideration of what legislation will be required by the new European Employment Directive (para 3.68).

Pressure to discriminate

The Task Force recommended that the DDA be made consistent with the SDA and RRA by being extended to cover instructions or pressure to discriminate.

  • The government has undertaken to legislate to permit the DRC to take action against such acts (para 3.66).

Other employment issues

The Task Force also made recommendations on extending the DDA to cover qualifying bodies and statutory office holders.

  • The government has proposed to consider this further in light of the new European Employment Directive (para. 3.68). It states that it will then consult on the consequent proposals, but states that because the Task Force recommendations largely predicted the approach of the Directive, further changes to the DDA would only be minor.

The Task Force made many recommendations to improve the DDA’s sections dealing with access to goods and services. However, at the time of publication, the provisions of Part III had scarcely been tested in the courts, and the duty to have physically accessible premises does not come into effect until 2004.

  • The government has asked the DRC to look at most of the issues raised, once the Part III provisions have come fully into effect.

  • The government does not believe that the Task Force proposal of publishing a set of access standards will be practical because the range of circumstances is too wide. But a new British Standard on access to buildings for disabled people is nearing completion (BS 8300 replacing BS 5810) and will be published in 2001 (para 3.77).

  • Government measures since 1998 to achieve accessibility for public transport are listed (Annex 1, pages 73-6) and the government has undertaken to carry out further consultation through the Department of the Environment, Transport and the Regions on bringing in an 'end date' for passenger rail vehicles to be accessible (page 101). The Disabled Persons Transport Advisory Committee (DPTAC) will be consulting on mechanisms to make private hire vehicles more accessible. The DETR is currently reviewing the Orange bade scheme. Local Transport Plans were placed on a statutory basis by the Transport Act 2000. A voluntary code on access to airports and airlines will be made statutory if the voluntary route fails.

  • A new working group has been set up through the DPTAC to advise on improving access to the built environment, which will consider the Task Force recommendations in this area (page 78).

Towards Inclusion also responds to other Task Force recommendations in the areas of Local Authority Best Value responsibilities in planning, social housing, rights of way; participation in public life; the court service; health and social services including advocacy support (in which the government is consulting through a forthcoming White Paper on Learning Disability). (pages 77-92).

Human Rights Act

The Task Force recommended that consideration be given to allowing the DRC to assist individuals under the Human Rights Act.

  • The government is continuing to consider this question by looking at it as an issue for all the equality commissions, in the light of recommendations that may be made by the Parliamentary Committee on Human Rights on whether there should be a Human Rights Commission (page 93).

The TUC thinks in principle that the DRC should have the power to represent disabled people under the Human Rights Act, if appropriate, however the question does need to be considered in light of the discussion around the creation of a Human Rights Commission.

---

Equal Rights Department

9 March 2001

Contact:

Peter Purton,

020 7467 1271

ppurton@tuc.org.uk

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