Promoting Disability Equality
Advice for Unions on the 2006 Public Sector
Disability Equality Duty
Introduction
Despite the best efforts of Government, the unions,
the voluntary sector and of disabled peoples' organisations, the proportion of
disabled people who can work but who are out of work remains stubbornly at
twice the rate for non-disabled people, and the proportion of disabled people
living their lives in poverty remains unacceptably high. The bleak overall
statistics conceal the even worse reality that for many groups of disabled
people, such as people with visual impairments or with mental health issues,
the unemployment rates are much higher still.
In January 2005, the Government's Strategy Unit
published a far-reaching paper called Improving the Life Chances of
Disabled People. This report, largely welcomed by the TUC and many others,
laid out an ambitious objective of ending discrimination against disabled
people in Britain by the year 2025.
The obstacles in the way of turning such a vision
into practical reality are numerous and powerful, and they are present across
the whole of society. Disabled people face disadvantage and discrimination
from the moment they become disabled. They face it at work, and in finding
work in the first place, but even before then they face it in education and
training.
Among the many improvements introduced by the present
Government, the Disability Discrimination Act 2005 (DDA 2005) contains a
section that offers the single most important opportunity yet for public
bodies to make a radical difference to the life chances of disabled people in
Britain. From December 2006 (2007 for some schools) a Disability Equality Duty
(DED) will come into force across all public bodies. The potential of these
new duties to transform the lives of disabled people is immense: but if this
is to be achieved, the duties will have to be approached with the right
intentions. Merely acting to comply with the law will not bring the changes
that might otherwise be obtained.
Trade Unions have been in the forefront of
campaigning for disabled peoples' rights. The new duties provide the
opportunity for an unprecedented step forward. This advice is provided to
unions to suggest ways in which they can ensure, by working in partnership
with employers, that the potential of the new laws to challenge the
disadvantage faced by the millions of disabled people in Britain is fully
exploited.
Part I: the DDA 2005
The Disability Discrimination Act 2005
The Disability Discrimination Act 2005 (DDA 2005) was
enacted after long consultation, and introduces many important improvements to
the original DDA 1995. These include extensions to the definition of
disability, such that conditions such as cancer and HIV are now automatically
covered from diagnosis, and a less stringent test for 'mental disability',
which no longer has to cross the hurdle of being 'clinically well recognised'.
The DDA 2005 introduces a public sector duty to
promote disability equality. This has been modelled on the similar duty on
public bodies to promote race equality (the Race Relations (Amendment) Act
2001) that followed on from the findings of the Stephen Lawrence enquiry, and
was important for identifying (in this case) the existence of institutional
racism. The duty created by the DDA 2005, similarly, was established because
it was recognised that discrimination against disabled people is not only
caused by individual acts of prejudice or ignorance, but is actually deeply
rooted in the system. To tackle the discrimination, therefore, makes it
necessary to go beyond the disabled person's right to challenge discrimination
against them as an individual established by the DDA 1995, to a situation
where organisations have the responsibility for ending discrimination against
disabled people in general.
That is why the new DED is so important, and why its
potential to achieve dramatic changes is so great.
The DED creates two types of duty on public bodies:
- A general duty; and
- A specific duty.
The Disability Equality Duty, in both its forms,
comes into effect for public bodies from 5 December 2006. (For primary
schools, community special schools and foundation special schools maintained
by a Local Education Authority, the duty to publish disability equality
schemes comes into effect on 3 December 2007).
The Code of Practice
The Disability Rights Commission (DRC) prepared a
detailed Code of Practice that came into force in December 2005. This Code,
which is available from the DRC's website,
www.drc-gb.org, was published in order to enable
public bodies time to prepare for the introduction of the DED in December
2006. While it is not in itself a statement of the law, it is a statutory code
and can be cited in legal proceedings. It offers detailed and practical advice
on the purpose of the Disability Equality Duties and how to carry them out.
The General Duties
All public bodies are subject to the general duty to
promote disability equality from December 2006.
In the words of the Act, the duty requires that every
public authority 'shall, in carrying out its functions, have due regard to the
need to:
- Promote equality of opportunity between disabled
persons and other persons;
- Eliminate discrimination that is unlawful under
the Act;
- Eliminate harassment of disabled persons that is
related to their disabilities;
- Promote positive attitudes towards disabled
persons;
- Encourage participation by disabled persons in
public life; and
- Take steps to take account of disabled persons'
disabilities, even where that involves treating disabled persons more
favourably than other persons'.
- As the Code of Practice makes clear, the first of
these is the main and overriding duty: the others are all part of the
overall duty to promote equality of opportunity, and by working to deliver
them all, will contribute to that objective.
Who is disabled? - the DDA answer, and the Social
model
The public body's disability equality duties apply to
anyone who is a disabled person within the definition of disability provided
by the Disability Discrimination Acts 1995, as amended by subsequent changes.
The TUC position is that the model of disability upon
which the DDA has always been based is flawed. By focussing on someone's
impairment(s), the law emphasises what someone cannot do, rather than
taking an approach that the real cause of the disability faced by someone with
an impairment is not necessarily the impairment itself, but the barriers
created by society. The law is based on a medical model of disability. The TUC
supports the disabled people's movement in arguing the importance of the
alternative, social, model. In this model, the disadvantages faced by disabled
people are not the result of impairments themselves, but of the barriers
placed in their way. These include physical obstacles, but are chiefly
barriers set up by the attitude that disabled people are less capable of being
full citizens or are 'charity-cases', leading to a culture of discrimination
and second-class status which only serves to reinforce the exclusion from
society that confronts so many disabled people.
The DED offers the chance for unions in negotiating
with the employer to advance practical proposals that will, in reality,
encourage approaches based on the social model, and thereby lead to measures
that are more effective in overcoming disability discrimination and achieving
equal opportunity. There is more on this point in Part two below.
Who is subject to the General Duties?
The DDA 2005 defines a public body in the same way as
the Human Right Act 1998, which is to say that it covers everyone 'certain of
whose functions are of a public nature'. The law does not provide a list, in
contrast to the approach of the Race Relations (Amendment) Act, but it is
specified that bodies listed in that Act are automatically included. The
Disability Rights Commission Code of Practice lists the following as types of
body that are certainly included:
- Ministers, government departments and executive
agencies;
- Local authorities;
- The National Assembly for Wales;
- Governing bodies of further and higher education
colleges etc;
- Governing bodies of educational establishments
maintained by local education authorities;
- NHS trusts;
- Police authorities and the Crown Prosecution
Service
- Courts and tribunals;
- Inspection and audit bodies and agencies; and
- Certain publicly funded museums.
- Equivalent public authorities in Scotland are also
covered by the general duty.
Th e provision concerning 'functions of a public
nature' is an important addition, as it means that otherwise private sector
organisations can also be covered by the DED if they find themselves
exercising such a function. The Code of Practice indicates that examples would
include private companies running schools or prisons, to the extent that the
work related to that public function (and not, therefore, to other activities
of the private company that did not). But it can also be extended to private
companies that win contracts for any operations of a public body. This is a
very important element of the DED, as it offers a means whereby disability
equality policies can be extended to parts of the private sector through the
contracting process. There is more on this in Part four below. (NB. This
section will be published in a revised edition of this text in April 2006.)
What are the DED specific duties and what bodies do
they cover?
The specific duties established by the DDA 2005 are
more detailed than the general duty. They are, potentially, the most important
element of the law. They create obligations on public bodies and require them,
by law, to undertake specific practical steps to promote disability equality.
Once these duties are put into effect, they provide for the essential measures
to bring about genuine and significant improvement in the lives of disabled
people. Unions will want to focus very much on the steps laid down by the
specific duties when negotiating with public sector employers.
As the Code of Practice states, the specific duties
are designed to create a framework in which public bodies can plan, deliver,
evaluate and report on their performance in carrying out the general duties
outlined above.
The Disability Equality Scheme
At the heart of the specific duties is the
requirement on a public body to produce a Disability Equality Scheme
(DES), to carry it through, and to report on it. The DES needs to set out
precisely how the public body plans to carry out its disability equality
duties. It requires the public body to involve disabled people in the
development of the plan (and to report how this involvement has taken place),
to show how impact assessment has been measured, and to propose a series of
steps in order to accomplish its general duty. It also requires the public
body to demonstrate what it has done to gather information regarding
employment and service provision, and to show what it is doing to review and
if necessary adjust the plans. There is a time limit of three years for the
achievement of the steps described in the DES, and it must publish a report
describing the actions taken, and their consequences. The DES of December 2006
will be the first in a continuous series of Disability Equality Schemes, each
building on the achievements, and learning the lessons, of the previous
scheme.
Unlike for the general duty, there is a list of those
public bodies that are covered by the specific duties, set out by regulation.
This list is published as an appendix to the Disability Rights Commission's
Code of Practice. All bodies covered by the general duties as listed above are
included, and others may be added (or removed) by future regulation.
Deadline for the first Disability Equality Scheme
All public bodies (except for the primary schools
(etc.) granted a further twelve months to do this) must publish their first
DES by 4 December 2006.
Enforcement of the law
While it is to be hoped that it will not be necessary
to challenge legally the actions (or perhaps more likely, lack of action) of a
public body under the DED, the TUC has expressed concern as to whether the
measures put in place to enforce the law are adequate. It will be seen from
the following that legal routes to enforce the Duties are narrow, reinforcing
the importance of securing implementation by agreement.
If a public body fails to comply with the general
duty, anyone with an interest (for example, a disabled person or group of
disabled people, or the DRC) can make a claim to the High Court for judicial
review of the public body's actions.
If the public body fails to carry out its specific
duties, enforcement action can be taken by the DRC, which can serve a
compliance notice upon the organisation, and if it still fails to comply, or
to supply requested information to the DRC within a reasonable time, the DRC
can apply to the county court or sheriff court for an order requiring the
public body to comply.
It will be seen that individuals or organisations
such as trade unions cannot themselves seek enforcement action on specific
duties, but would need to request the DRC to act.
The DRC itself will cease to exist with the creation
of the Commission for Equality and Human Rights (which the Government plans to
achieve in 2007), and this new body will inherit the DRC powers in this area.
Part II: Unions and the disability equality duties
Potential of the DED
From the description already given, it will be
apparent that the DDA 2005 offers unions the chance to become part of a
dramatic transformation of the lives of disabled people. Any disabled person
working or wishing to work for a public body, any disabled person using
services provided by a public body, or undergoing education or training from a
body that is thereby exercising a public function, should find that radical
improvements are made. The specific duties additionally call for activities
aimed at challenging ignorance and prejudice about disabled people more
widely, thus contributing to the process of tackling social exclusion.
Whereas until now, an individual who found themselves
discriminated against by an employer or service provider might be able to
challenge that discrimination in tribunal or court, and obtain an individual
remedy, the DED means that public bodies are under an obligation to plan their
practices and services so that they deliver disability equality to all
disabled people. By this approach, institutional discrimination can be
challenged such that both present and future disabled workers or service users
find that barriers have been removed before they encounter them.
Of course, in reality, getting to this point will not
happen easily or quickly, even where the public body genuinely wishes to do
so. Unfortunately, as unions know, many public bodies currently display no
such enthusiasm to challenge inadequate policies or bad practices,
particularly if they have not yet been challenged under existing disability
law. Others do not yet see disability as an important issue of equality.
That is why the role that trade unions can play in
promoting disability equality with the public body with which they negotiate
may well be critical in moving the organisation's attitude from being one of
reluctant compliance with what may be seen by some as 'yet another
government-imposed burden', to one of genuine identification with the goal of
disability equality. At the same time, by pressing an organisation to ensure
that they extend their duties to those to whom they contract any of their
services, unions will also be able to help extend both legal compliance, and
good practice, to the private sector.
Basic Principles
It is important to act promptly. With the first
Disability Equality Schemes having to be published in December 2006, now is
the time for unions to press their claim to a say in the preparation of the
public body's DES, and for unions to themselves gear up for the detailed
discussion necessary - crucially, by drawing on the experience of their own
disabled members.
The rest of this section will explain the principles
that ought to underlie the trade union approach to the DED, while part III
will look in more detail at the particular issues that unions may need to
argue for with the body with which they negotiate.
Essential principles underlying the union approach to
negotiations with the employer on a DES will include the following key
elements, that are explored here, and need to borne in mind when considering
the specific elements of a Disability Equality Scheme in the following
section:
As the Code of Practice indicates, adopting an
approach of mere compliance, of doing the minimum necessary to stay within the
law, will actually most likely lead to a failure to deliver the objectives. It
would be very easy to adopt a 'tick-box' plan, with superficial statements of
principle but lacking any intention of achieving real changes in the lives of
disabled people. No one benefits from such an approach. Unions will want to
ensure that a public body focuses not on processes, but on outcomes. The other
basic principles proposed here all relate to this starting point.
- Leadership from the top
- Success or otherwise in securing the wholehearted
commitment of the public body to securing the outcomes required by the DED,
and continuing to invest them with the appropriate degree of seriousness and
priority for a long period, will almost certainly require a strong lead from
the top of the organisation. Unions will want to impress on those with whom
they negotiate that chief executives, board members and senior managers need
both to commit themselves to effective implementation of the DED, but also
to be seen to do so on an ongoing basis. Personal, and practical,
endorsement of the objectives of the DES from the very top of an
organisation may help inspire those who have responsibility for managing the
necessary changes to recognise both that this is important to the
organisation, but also to understand the need to integrate it into their
mainstream priorities.
- Social Model
As explained above, unions will want to press the
public body to adopt (and to understand) the social model, as representing the
best foundation for preparing and implementing a DES. Reference to the Code of
Practice will support this approach, as it is explicit in placing its advice
in a social model context. But unions can also go further in arguing for
higher standards than the minimum laid down by the law. If a public body
genuinely wants to achieve the objectives of the general duty, it will see the
good sense of adopting this approach to its practical activities.
- Equality rather than awareness
The heading of this paragraph refers to types of
training that are on offer to organisations, but follows directly from
understanding the reasons for adopting the social model, and applying them in
practice. The take-up of training on disability issues has grown rapidly with
the enactment of the DDA. Many agencies now offer courses to employers and
service providers, and with the arrival of the DED, there are already many
providers encouraging organisations to buy their training product. Any
training that reflects accurately what the DDA says and how to respond is, of
course, a positive step.
But it is important to get managers to understand
the principles that underlie the new duties. That is why the TUC urges unions
to argue that employers and service providers should run Disability
Equality rather than Disability Awareness training. This is not
merely a difference of terminology, but of approach. Awareness training,
traditionally, does not challenge the medical model of disability. It looks at
disability through promoting understanding of impairments, and how
non-disabled people should respond to them. Equality training, in contrast,
leads to an understanding of the roots of discrimination, and to challenging
attitudes and behaviour. Delivered by disabled people, it is well suited to
developing the particular comprehension of disability issues that should
underlie an effective DES. In other words, the public body needs to know not
only what it is doing, and how to make adjustments to premises and practices,
but why, if it is to be able to deliver the objective of promoting disability
equality.
- The role of the unions ...
Unions will want to impress upon the management side
that they represent a valuable resource for the success of the organisation in
establishing, measuring and achieving their objectives. In part, this may be
because of the unions' role in educating their members about disability
equality, and in knowing the real issues in the workplace, and in part it may
be because the unions themselves have structures for disabled members that can
be used as a source of expert information. The Code of Practice explicitly
recognises the potential contribution that unions can make.
- Involvement of disabled people
The DRC Code of Practice rightly stresses the
importance of involving disabled people at all stages in the life of a DES,
and the Code offers much helpful advice on how to do this. Unions will want to
promote and explain why this approach is both right from a moral point of
view, and also at a practical level is the best way to ensure that a DES sets
the right objectives and takes the best steps to achieve them.
Unions' own disabled members can play a major part in
this.
Involvement needs to be genuine and transparent. It
may also need to take particular care to be inclusive. Many consultations fail
to reach all of those with an interest, and may sometimes pick and choose
which of the responses to listen to. Such an approach to involvement will not
be effective. But it is easier to talk to the same people every time (the
'usual suspects'), even if they are not really representative or accountable.
Unions may need to encourage and assist public bodies to re-examine their
normal consultative procedures and to try something different, in order to
reach more - or more representative -disabled people. This may also involve
urging that the public body assist in developing the capacity of local
organisations of disabled people in order to achieve this improved
representativeness (see below in Part three for more on this).
- Treating disabled people more favourably
UK disability laws are not the same as the other
anti-discrimination laws with which unions will be familiar, in that they
apply only to one group of people, i.e. disabled people, and they are based
not on treating people the same, but recognise that in order to treat
disabled people equally, it is sometimes necessary to treat them more
favourably than non-disabled people. This principle, which underlies the
'reasonable adjustment' provision of the DDA 1995, applies no less forcefully
in the DED. Unions may need to be conscious of this when negotiating action
plans for the DED with public bodies that have not, in the past, paid detailed
attention to the position of disabled people. Once again, ensuring that the
focus is on outcomes rather than processes will show the necessity of this
approach, which might otherwise appear contrary to usual equality arguments.
The Code of Practice explains this issue very clearly.
- Securing the widest and deepest application of the
Duties
Unions will want to ensure that in approaching their
responsibilities under the DED, public bodies cover all possible areas of
activity (see advice on audit and information gathering in the next part) in
order to maximise their effectiveness and reach.
The DED calls for public bodies to give 'due regard'
to disability equality in all its activities, and this is the provision
whereby organisations can be pressed to undertake a thorough review of what
they do, rather than assume, in advance, that they know which of their
activities has significance for disabled people, and which do not, and can
therefore be ignored. In truth, on examination, there may be very few
activities at all of most public bodies that do not have some impact on
disabled people.
At the same time, though, as widening the reach of
the DES to cover all relevant areas of activity, the organisation will need to
mainstream its disability work. Each organisation will be different, but
unions will need to be aware that to be effective, a DES has to succeed both
in highlighting specific disability-related plans of action, but also has as
one of its objectives getting disability equality embedded in the mainstream
of the organisation's work and structures. This will require firm leadership
and clear objectives laid out from the top management of the organisation.
Preparing the union itself
Union negotiators will need to be equipped with
relevant information. If the union or the TUC are providing a training course
on the DED in the region, they would be advised to ensure that this
opportunity is taken up. At the least, anyone who will be negotiating with the
public body needs to familiarise themselves with the DRC publication, The
Duty to Promote Disability Equality: Statutory Code of Practice.
There are important issues to be grasped in relation
to disability, that differ from those with which unions might already be
familiar with from dealing with other equality issues. These include the
particular questions that arise regarding monitoring disability. As this will
necessarily be part of a public body's DES, it is vital that unions are aware
of the issues, and the good practice recommendations. If a union does not
provide its own specific advice on disability monitoring, for example,
recourse should be had to the advice published by the TUC and available on the
TUC website - Monitoring Disability,
www.tuc.org.uk/equality. There is more on monitoring
policies in Part three below.
Part III: specifics of a Disability Equality Scheme
In the previous section, advice was given on the
principles that ought to be borne in mind when unions discuss Disability
Equality Schemes (DES) with public bodies. In this section, advice is given on
the specific components of a DES where union input may be vital in ensuring
that the resulting scheme is based on the best possible approach. The purpose
of the advice is to try to ensure that the DES adopted by the public body
achieves the best possible outcomes in advancing equality for disabled people,
in line with the broad statement of objectives set out in the General Duty
previously listed.
The Code of Practice spells out what the law requires
of a public body. These include statements of:
- The way disabled people have been involved in the
development of the scheme;
- The authority's methods for impact assessment;
- Steps to be taken towards fulfilling the general
duty (known as the 'action plan');
- Arrangements for gathering information in relation
to employment and service delivery; and
- Arrangements for putting the information to use.
- This section concentrates on particular questions
where unions will want to have an input into the public bodies' preparation
for meeting these requirements, but is based on the matters that will need
to be included in an organisation's planning and implementation across all
the areas listed above.
Involving disabled people
The need for a public body to involve disabled people
in identifying barriers they face, setting priorities, assisting planning,
monitoring progress and evaluating the outcomes represents a fundamentally
important starting point for a DES. The requirements are the best guarantee
that a public body's actions are based on a proper understanding of what needs
to be done, and how to do it.
The term 'involvement' has been chosen deliberately,
and the Code stresses that it is intended to mean a much more active role than
'consultation'. The Code advises in detail on a range of criteria that should
be used in deciding how to set about the task of involving disabled people,
and the steps needed to support this happening, including establishing new
forums, providing support for disabled people to take part, etc.
Under this heading, unions will want to press for
involvement to reach out as well to disabled people who may not be immediately
visible, or involved in existing organisations relied on by the body for
consultation in the past. In planning the form of involvement to be set in
place, particular attention may be required to ensure that the voices of
people with mental health issues, or learning disabilities, are effectively
heard. Similarly, particular effort may be needed to reach out to disabled
people from minority communities. Such steps are very likely to require a
public body to provide additional resources to establish suitable forums. It
may also be necessary to find the resources needed to enhance the capacity of
existing disability organisations to function. For example, it would be wrong
to expect that disabled people should give freely of their time and expertise
to advise the public body.
Unions can play a critical role in providing a
ready-made and easily-accessible source of expert information on many of the
aspects of a DES. Most obviously, if a union has its own disabled members'
group, it would be reasonable to expect a public body to involve this in its
work, and unions would need to negotiate that (for example) members of the
group were allowed paid time off work to take part in such exercises.
It is important to remember, of course, that union
members may be in a good position to comment not only as workers for the
public body, but also as users of any services it provides. Union members,
disabled and non-disabled, may also have disabled relatives and friends who
are service users, and who could be alerted to forthcoming opportunities for
involvement.
In preparing for discussions with the public body,
therefore, unions are advised to alert members, and especially disabled
members, to what is intended to happen, and to begin to establish their own
channels of communication with disabled members as a matter of urgency.
Employment practices: audit and action
It is obvious that the first stage of any DES must
involve an audit of what already exists. This will include both the services
provided by the organisation, and its employment practices.
Evidence collected by the Disability Rights
Commission (during 2005) suggested that many public bodies are already working
on improving their service provision, and are conscious of disability issues,
but that they have paid very little attention to employment practices. While
some organisations are already collecting data on the proportion of disabled
people among their workers, many are not, and it is not clear that much use is
made of the information gathered even by those where such monitoring is
already in place.
Therefore, it is likely that unions will need to
press the organisation strongly to recognise not only that their Duties
include duties to their workers, but that their equality schemes must address
these issues with effective and practical measures.
The specific duty requires a public body to state
what arrangements it has made to gather information, including information on
the recruitment, development and retention of disabled staff. Unions will want
to press, therefore, for the organisation to include within its scheme the
measures required to review the disability content of its existing policies
for recruitment, development and retention, and then to check what the reality
is, that is, existing practice. This is a critical distinction: there
can be a big difference between a policy made at senior level, and its actual
implementation by managers responsible for putting it into practice. There is
much evidence collected by unions to confirm that there may be little
understanding of an organisation's overall disability policies at line manager
level. The DES provides a vital opportunity to work with the employer to
overcome such gaps.
There will be key issues on which information will
need to be collected. Unions should first consult with local representatives,
and in particular with their own disabled members, to ensure that all areas of
employment policy and practice that are relevant to disabled people are
included in the review. From existing experience, it is possible to say that
this is likely to include some or all of the following questions:
- How many disabled people work for the
organisation, and does this represent a proportionate number relative to the
local community? This simple question will in turn raise important issues
about definitions, for which see the advice on monitoring starting on page
24.
- Does the organisation have a policy of encouraging
the recruitment of disabled people? If so, how does it make this known to
disabled people in the community? Does it subscribe to the Two Ticks
scheme that states its compliance with good practice standards for employing
disabled people such as guaranteed interviews for suitably qualified
disabled applicants, and if so, what does it do to confirm that it complies
in practice?
- How does the organisation review the recruitment
process? Does it monitor recruitment statistically? What, exactly, does it
measure? If it does count numbers of disabled applicants, what does it do
with the results of the monitoring?
- Does the organisation have a means of monitoring
the progress of disabled people once they have become employed? Does it know
the proportion of disabled people by grade, and does it know if disabled
people are over- or under-represented in higher grades?
- Does the organisation check the take-up of
training and development opportunities by disabled staff, and whether this
is the same, worse or better than for non-disabled staff? The same question
then applies to career progression through promotions, etc.
- If the organisation operates performance-related
pay or similar schemes, does it measure, specifically, the performance of
disabled people compared with non-disabled staff? Has the design of such
schemes taken into account issues such as the adjustments that may be
required by some disabled workers?
- How are disabled staff treated when it comes to
grievance and disciplinary procedures, and capability procedures, by
comparison with non-disabled staff?
- Is the number of disabled staff taking early
retirement, or being selected for redundancy or redeployment proportionate?
- Does the organisation know the retention rate for
disabled workers, and whether this is the same as, worse than or better than
that for non-disabled staff?
Once the data has been assembled (see the advice on
monitoring below for details about how this should be carried out), the key
step then will be to agree with managers what needs to be done to bring about
measurable improvements in all areas in which it has been shown that disabled
workers are suffering from the discrimination, the elimination of which is one
of the key components of the General Duty.
These measures are likely to include such elements
as:
- Setting targets for percentages of disabled
workers in the organisation as a whole with a timetable for implementation
and review;
- This must include targets for recruitment, and at
the various stages of the plan over the three-year duration of each scheme;
- Identifying any particular 'hot spots' where
unacceptable discrimination appears to be taking place in the organisation,
and taking remedial action, which will probably include ...
- Specific, mandatory, training for managers and
staff in those sections of the organisation where discrimination has been
identified, with review periods agreed with the union. It is likely to be
useful to make a senior manager responsible for overseeing the improvement
required. It is also likely that specific training in what the DED is about,
both in principle and in the practical measures contained in the DES, may be
the best way to obtain understanding and progress across the organisation as
a whole.
- Specific steps to put right any failures at the
level of policy, which may be errors of omission, by the adoption of new or
revised policies; and
- Where policies are in place, but are not being
implemented properly, appropriate resources from management to correct this,
with review as appropriate to make sure that the agreed steps are being
taken.
Priorities
Remember, all these elements are necessary in a
successful employment policy aimed at achieving the outcomes called for by the
DED and they all need to be spelt out in the organisation's DES. This does not
mean, however, that they all have to be achieved at once, and this may not be
a feasible objective. But the DED requires the organisation to have a view on
everything that needs to be done, and to establish priorities, and timetables
with milestones, that should be reflected in their action plans. It is also
required to explain on what basis it has decided on its priorities (see the
Code of Practice recommendations on impact assessment for this). Unions will
want to play their part in agreeing with the employer where the priorities are
for each successive phase of the plan when it comes to employment policies and
practices, and for helping bring about the changes laid out in the plan.
Monitoring Disability Equality Schemes
It will be clear from what has been said about the
audit process above that measuring must be an essential tool for the employer
in deciding on priorities for action, and for evaluating the success or
otherwise of the measures adopted. Public bodies may already have monitoring
schemes in place for race and gender, and some will already have established
disability monitoring. It will be necessary to review existing schemes to
check that they are appropriate for the purposes to which they are required to
be put if the DES is to be effectively implemented. In the event that there is
no current monitoring, then an entirely new scheme will need to be devised.
The TUC recommends that it follows certain guidelines.
An elementary question, but one that is frequently
overlooked, is to be clear what the collected information will be used for. A
public body genuinely wishing to give effect to its duties under the DED may
still need to consider carefully what kind of information it needs to collect,
and how it will use it. Having established one form of monitoring at the
beginning of a DES, it will not be sensible to modify it before the end of the
life of the DES without risking invalidating the scheme itself, therefore it
is essential to be certain the monitoring scheme fits the task from the
outset.
A monitoring scheme will be of no value unless it
achieves a consistently high rate of return. However, experience shows that
historically, many disabled people do not respond to questions about
disability on monitoring questionnaires. This may be because they fear
discrimination if their impairment is exposed, it may be that they simply
regard it as a purely personal matter, and it may be (as studies have
established) that a high proportion of people who are in fact legally disabled
(using the DDA definition) do not see themselves as disabled. Unions can
assist public bodies to prepare monitoring based on the direct input of union
members, and in particular disabled members, as to what will work best.
Detailed advice on monitoring and
information-gathering will also be published by the Disability Rights
Commission, and by equality and diversity bodies working in various areas of
the public sector, and employers will usefully be encouraged to consult this
advice as well.
The TUC advice on monitoring offers some general
advice as a starting point:
- First consult with existing groups of disabled
employees and service users, to explain why monitoring needs to take place,
and what will be done with the collected data, and to establish from
disabled people how the exercise could be carried out most effectively;
- This initial phase of the exercise needs to be
done as part of a general promotion of the DES to everyone who is affected,
throughout the organisation and its service users. By this means, workers
and users can be made aware that the organisation is planning to make
serious steps towards the elimination of inequality for disabled people,
providing the framework in which the particular elements of the DES,
including information-gathering, will fit.
- The training that will be required for managers
throughout an organisation if it is to successfully carry through its DES
plans should include a section explaining the monitoring process. This
should also be explained to all staff through briefings. This will be very
important in encouraging many disabled workers (and most obviously the many
with 'invisible impairments') to complete the survey, as well as being an
opportunity to explain the definition of disability being used.
- For almost all purposes, a monitoring question
need only ask 'do you consider yourself to be disabled?' with a 'yes/no'
answer. This approach will enable the organisation to carry out statistical
measurement and to compare the results with the proportion of disabled
people overall. It also enables all the other areas highlighted above that
require measurement, to be studied on a reliable comparative basis, and for
progress over a number of years to be examined.
- Previously, it was common for monitoring
questionnaires to ask people to identify themselves from a long list of
impairments. This approach is strongly discouraged. It is rooted in the
medical model, and from a practical viewpoint it reveals nothing about the
measures that would need to be taken to remove barriers in individual cases,
and it forces those who decide they should respond to put themselves into a
medical category, where in fact they might not easily fit into any of those
listed.
- To tackle the problem that so many people who are
legally covered by the DDA do not consider themselves disabled, it is
recommended that the monitoring include a summary of the definition of
disability used in the DDA, as well as that this is covered in briefings for
all workers.
- Generally, the TUC advice is that the monitoring
should be both anonymous and confidential, and that a guarantee of this
should be clearly highlighted. The reason for this is to ensure the maximum
response levels, without which the exercise may prove costly and futile.
- Organisations may decide they wish to use some
kind of monitoring specifically to identify barriers, so that they can be
dealt with. It would be difficult to achieve this outcome through a
monitoring questionnaire, and at the same time preserve anonymity for the
respondent. It is therefore recommended that separate systems be put in
place for this exercise. One option would be to provide a contact in the
organisation to whom information about barriers can be sent confidentially.
Of course, it will be necessary that the person receiving the information
has authority to follow up with steps to remove the barrier identified.
- In larger public bodies, there may arise
the question not only of whether a proportionate number of disabled people
are working for the organisation, and are being treated equally through all
its different systems and procedures, but also of whether there are
particular groups of disabled people who are still not being reached or
included. A public body with the intention of implementing its duties to the
maximum may wish to know whether, for example, people with visual or hearing
impairments, or people with mental health issues or learning difficulties,
who are known to be particularly excluded from employment at a national
level, are benefiting from the measures being taken by the organisation.
- However, there is no simple way to collect
statistical information reliably by asking people questions about their
impairment groups, and the TUC recommends this is not done. Instead, and
with the advice and assistance of the unions and (for services and
employment) of local organisations of disabled people, the organisation
might better undertake qualitative surveys. These could cover its
recruitment and retention procedures, looking at ways in which (for example)
recruitment advertising might be targeted at particular groups of disabled
people. For this to work, however, it will have been necessary first of all
for the public body to have put in place suitable changes in practice to
ensure that people from these impairment groups are enabled to participate
as workers in the organisation. The consultation recommended should aim to
provide the body with the information needed to set about such steps.
- An organisation's Human Resources department is
likely to be aware of the requirements of Data Protection Act when it comes
to storing and using personal information. The necessary restrictions of
this Act on storing and using personal information provide another reason
for ensuring that monitoring is anonymous.
- A DES will entail making an annual report on
progress: data collected from monitoring will provide an essential
component, but only if it is properly analysed, then used to influence the
next steps in the DES. Unions will want to negotiate with employers the
appropriate action to be taken when the data is collated and reveals where
problems currently exist.
- When reviewing the findings of a monitoring
exercise, organisations will need to be alert to the possibility that
absence of data from particular areas may conceal problems, rather than
reveal the absence of problems. If people with hidden impairments decide not
to identify as disabled on a questionnaire, it may be because they fear
(whether or not this fear is justified) that they run the risk of being
exposed, and that there will be adverse consequences for them, their career
prospects, etc. Their decision not to respond therefore reveals that
actually there is a serious problem in that area, rather than that there are
no disabled workers there. In these circumstances it would be prudent to
cross-check the overall findings of a survey with a qualitative survey, in
which (for example) the individual and anecdotal responses of members of a
union's or an employer's disability network may help pinpoint particular
problem areas.
