TUDA News
January
2009
Inside
this issueÉ
Page
1 TUDA
AGM & Disabled workersÕ Experiences
Page 2
TUDA Responses to Government proposals
Page 7 Disability
Committee
Page
9 TUDA Merchandise
TUDA AGM
18th April 2009 11-4pm
Venue NCVO, Kings Cross London
BETWEEN A ROCK AND A HARD PLACE
Speakers on Welfare ÔreformÕ
And the need for tougher equality laws.
TUDA MEMBERS AND NON-MEMBER – ALL WELCOME
COME AND JOIN THE CAMPAIGN
ItÕs official! Disabled are more likely to have bad experiences at
work
No news to TUDA members but this was the conclusion of the 2008 British
Workplace Behavior Survey, published by the Equality and Human Rights
Commission. This survey of more than 4 000 workers found that disabled people
were more likely to say that they had had bad treatment at work –from
bullying and humiliation to physical violence. 27% said that they had been
insulted or had offensive remarks made about them; 25% said that they had
experienced intimidating behavior from people at work and 12% said that they
had suffered actual physical violence at work.
The culture of low expectations was also felt to be a bad problem for
many disabled workers. 19% said they were pressured by someone else to work
below their level of competence compared to 13.5% of non disabled employees.
At the same time the Government is introducing ever more savage
penalties for disabled people who are not in work – even though in many
cases this is the result of widespread employer prejudice.
IN THE REST OF TUDA NEWS WE SAY WHAT TUDA IS DOING TO GET THE
GOVERNMENT TO MAKE WORK BETTER FOR DISABLED PEOPLE
á
Telling the Government what we think about their
ÒWelfare to WorkÓ benefit cuts
á
Telling the Government what they need to do to restore
disabled peopleÕs rights after the terrible House of Lords decision on
disability discrimination
á
Giving evidence to Parliamentary Committee for the
Department of Work and Pensions on
how to improve equality in employment for disabled people
OCTOBER 2008 RESPONDING TO ÔWELFARE TO WORKÕ BENEFIT CUTS
This consultation is the latest in a series of Government initiatives to
cut welfare support for disabled people. At the same time that Incapacity
Benefit is replaced by Employment Support Allowance (ESA), a benefit whose real
value will be eroded over time and which already introduces increased tests and
requirements which will result in many existing claimants being barred –
this latest set of proposals will produce still further poverty and disadvantage
for disabled people.
Of course TUDA agrees with the principle that ÒNobody should be written
offÓ. However, compulsion is not the right way to help people either back into
or keep people in work.
We also disagree with the simplistic slogan that work is good for
you. TUDA knows only too well how many disabled people are blocked from
entering employment, and the devastating impact that this has. Nevertheless our
members also know that not all work is good for you - badly-paid, insecure
work, with poor terms and conditions is not.
Above all, the experience of repeatedly applying for jobs which one
fails to get is very destructive. The research regarding the discrimination
faced by disabled people is overwhelming. To pick but one example in 2005 the
Chartered Institute for Personnel and Development found that 33.1% of its
members excluded people with a history of long-term sickness or incapacity,
even though such a policy would almost certainly be contrary to the Disability
Discrimination Act.
More
needs to be done to keep people who become disabled or whose impairment changes
in employment. The Green Paper
merely offers a modest commitment to "Éexplore, with stakeholders, the
effectiveness of Employment Retention Assessments in helping disabled people
stay in work." We call on the government to meet the commitment made in
the Independent Living Strategy to establish a "cross governmental
national strategy on employment retention", on which little activity seems
to be taking place.
TUDA opposes the GovernmentÕs
proposals to toughen the JobseekerÕs Allowance (JSA)
sanctions regime, by introducing automatic benefit sanctions for people failing
to attend a mandatory interview without good cause and new rules that would
tackle violent behavior as it undermines everyoneÕs efforts to seek and sustain
employment. taking and testing powers to require long-term unemployed people
and those not participating in back-to-work support to engage in a program of
full-time, community-based work experience in order to improve their
employability skills and build up their work habits;
¥ expecting problem
drug users on benefits to take appropriate steps – such as drug treatment
or employment provision – that support a return to work;
They
propose that doctors tell us what work to do. We know from bitter experience
how wrong and damaging such advice can be. We are the experts – we must
not be dictated to about what jobs we need to look for.
Britain
already has one of the worldÕs toughest qualifying medical tests to receive
disability-related benefits.
Instead of making it even tougher it needs a radical overhaul to reflect
disabled peoples disadvantage in the Labour market rather than solely focusing
on whether a person is able to undertake a range of physical and mental tasks.
Assessments should not be restricted to individual capacity to perform
tasks. An assessment process must be holistic examining the environment, which
the disabled person must interact with when taking on paid work. Such factors
would include accessible transport, the routes to work are free from abuse and
intimidation from example local school kids, social care support is flexible to
enable the disabled person to go to work especially if this involves varying
shift patterns like in retail or service outlets and alike.
The Government has said that the funding for Access to Work will be
doubled from £69 million to £138 million – but only by 2013, so much of
this increase will therefore be eaten up by inflation. We need a bigger budget
to expand to job seekers as well as volunteers and to restore to Government
Departments.
A major barrier to disabled workers moving off benefit into work is the
lack of Access to Work provision for job-seekers
Restoring Disability Rights
A recent House of Lords decision (Malcolm v L.B Lewisham)
greatly restricted disabled peopleÕs rights.
Mr Malcolm, a man with schizophrenia (and thus covered by the DDA)
sub-let his flat in breach of his tenancy agreement. Lewisham council brought eviction proceedings against him.
Mr Malcolm challenged this on grounds that, under the Disability
Discrimination Act, managers of premises must not discriminate against a
disabled occupier by evicting him or subjecting him to another detriment. This
includes not treating a disabled person less favourably for a reason related to
their disability, unless that can be justified.
Mr Malcolm argued that the court could not grant a possession
order against him, as this would be disability-related discrimination. Because of the effect of his
impairment, he argued that he did understand that he could not sublet his flat
nor did he understand the potential consequences of doing so.
Until this case the approach would have been that the comparitor
was someone who did not have a disability and did not sublet (this test was
established by the Court of Appeal in a case called Clark v Novacold in
1999)). In the Malcolm case,
however, the House of Lords ruled that the comparitor should be someone who had
sublet their flat but who did not have a disability. Since Lewisham Council
would have sought possession against anyone who had sublet his or her flat, the
Law Lords found that Lewisham Council had not treated Mr Malcolm less
favourably for a disability-related reason.
TUDA
calls on the Government to introduce a revised version of disability related
discrimination in order to correct the gap in protection left by the Malcolm
judgement.
At
the end of November the Government issued a Consultation Paper called Improving
Disabled PeopleÕ s Rights. It needed to be responded to by 6th
January! (Hardly good practice)
On
the face of it this looked great – at last they were suggesting extending
the prohibition against indirect discrimination to disabled people. But this
was instead of, not in addition to, taking steps to remedy the Malcolm
judgement. They propose just abolishing the concept of Ôdisability related
discriminationÕ.
We
said that this was not good enough. Whilst we would like in addition to see
indirect discrimination introduced it is imperative that the Malcom decision is
reversed as soon as possible – and as effectively as possible. This
decision overturned a long-standing understanding of disabled rights, well
accepted by employers and service providers.
The
decision removes a useful tool from the armoury of workplace representatives
– prior to Malcolm, they could argue that if an employer was going to
subject a disabled person to particular treatment, such as dismissal, and this
was related to their disability, the onus would be on them to show that it was
justified. Now, it is for the disabled person to say that they need adjustments
– meaning a completely different emphasis.
The
case for reversing this impact is also clear: the concept of disability related
discrimination was well established and accepted by employers, service
providers etc; with the sole exception of the housing arena, the flexibility of
the justification provisions provided a satisfactory tool for bearing the
weight of establishing whether treatment had been fair.
What the lawyers say!
Legal commentators across the
spectrum agree that this decision severely restricts legal protection to
disabled people.
Personnel TodayÕs comment on the Malcolm
case was headed ÔDisability claims will now be harder to makeÕ. They state:
Òemployers will now have more freedom to dismiss absent disabled employeesÓ,
although caution that reasonable adjustment considerations will still need to
be considered.
IDS Diversity at Work commented ÒWhile the
Novacold test was flawed as a comparative exercise, it could at least be said
to encourage a climate where employers, landlords, retailers, etc needed to
think about how their rules, actions and practices affect people with
disabilities. The approach enshrined in Malcolm does exactly the opposite,
requiring simply that disabled people are not the only one subject to such
rules.
SolicitorÕs Journal stated that:
ÒParliament must now be urged to enact legislation to make clear their
intentions and bring cases of indirect discrimination back within the scope of
the DDA. Ò
Employment Lawyers Association
Briefing
ÒThe scope of the DDA has been
significantly narrowed and much of the burden on employers has been liftedÉThe
decision may come as a blow to disabled employees and, as was acknowledged by
the Lords, they may find they now have fewer rights.Ó
Parliamentary inquiry into disabled peopleÕs equality
The
Work and Pensions Committee announced an inquiry "The Equality Bill: What
steps should DWP take to achieve greater equality?" The inquiry is to
evaluate the effectiveness of current equality legislation and proposals in the
Equality Bill. How can the Equality Bill open up opportunities in employment,
particularly for disabled people, carers and pensioners? How could the duties
in Goods, Facilities and Services of the DDA be built on to deliver systemic
change? How can the Access to Work scheme better enable people to obtain, stay
and progress in work?
TUDA
Responded
á
We welcome the proposal for an EC Equality Directive which would help
address non-employment areas across Europe. The Government needs to anticipate
the new obligations in the Equality Bill.
á
The Government needs to ratify the UN Disability Convention as soon as
possible and without reservations or interpretative declarations.
á
Our priorities for the Equality Act are:
o
A comprehensive definition of discrimination that effectively addresses
inequality and structural disadvantage of disabled people.
o
Extending protection to those associated with disabled people
o
Preserve existing rights of disabled children in education.
o
Retain the key principles of both the general and specific disability
equality duties.
o
Extend the Public Sector duty to the private and voluntary sector.
o
Strengthen the enforcement of the legislation.
á
Maintain and extend the Access to Work Programme
á
Monitor the implementation of the Equality Act.
Disability
Committee Meeting held on Wednesday 15 October 2008 in Congress House, Great
Russell Street, London WC1B 3LS Written by Richard Cook
Election of Chair; I proposed Mark Fysh who was elected
TUC Disability Conference 2008 report
The most significant important single item on our agenda. The first is
our motions, monitoring report, guest speakers, comments from delegates, and
next yearÕs conference. We looked at each motion individually and any letters
sent or consultations by the TUC: Monitoring: Peter said thank you and with
help from the disability committee a good 70% return was achieved. I said this
was good but we must still try to improve. I found the monitoring compelling
reading with some good & bad points. It was felt the delegations sent from
some unions were not always a reflection of the people they represent such as
women and ethnic minorities. The TUC said we must encourage all unions to send
a more representative mix of delegates in future. All elected members of this
committee must try to do this?
TUC Disability Conference
Guest speakers for 2009. Suggestions of new subjects were made.
Chairing the same as 2008 as this worked well. Informal topics were suggested
would raise this more at next meeting in January. Some speakers were suggested
such as the general secretary and president.
Report of meeting with EHRC
Peter reported he had an extremely
friendly positive meeting with EHRC. It was upsetting the reaction the
disability press had given the EHRC recently? The committee decided we must
invite Niel Crowther as had been suggested. Peter said training to be provided
by EHRC is good news and we should be pleased with this.
Access to Work campaign update
I said; is the statement to restore ATW still a fact? Have we had any formal
response yet? Peter said the paper presents me with conflicting information
that are provided by letters and on the other hand by verbal promises, so the
long and short of it is, we seem to have won a resounding victory,
alternatively it could be wrong so who knows. My recommendation is that we
assume that we have won this case but until we have had full confirmation I am
really unsure.
Social
Care consultation
Richard Exell, Senior Policy Officer,
Economic & Social Affairs Department
Richard said he was putting together the TUC response. Some of the
points raised were that the ideal one place for social care was the NHS. We had
quite an interesting discussion about what our attitude should be on what is
probably the most important report on social care. We decided we should oppose
privatisation, where possible supporting the personalisation agenda, not to be
opposing direct payments. We were concerned that the quality of assessments
varies so widely and we must insist that individual budgets are a free and
voluntary choice. Richard did not want people forced into an individualised
system.
TUC equality audit
Sally Brett, TUC Equality Policy
Officer, Equality & Employment Rights Department
The
theme this time is promoting equality through collective bargaining. The TUC
does have a good response rate from unions and we have made some changes
especially on collective bargaining. The forms are going out now. Many good
suggestions were made to improve the audit and this was taken on board by the
TUC.
Speakers at Committee meetings
The committee agreed to have one speaker
at each meeting POA was invited today. Prison Officers Association (POA) gave
us a comprehensive report. The prison service do not recognise their own
disabilities network and are aggressively convinced it is not required, But it
is for the trade union to show that it must be put in place. Lots of
information was given, this was a sharp learning curve for the disability
committee. Sara Veal suggested they come to our equality briefing meetings.
Joint
work with the TUC WomenÕs Committee*
Narmadha Thiranagama, TUC WomenÕs Policy Officer introduced this
item The
WomenÕs committee proposes that they work with the disability committee where
we have common ground and a joint interest. The disability committee was keen
to do this but said we must always be consulted on everything. Narmadha said
that she was about to write a report on women and transport and this is an area
where we could work together such as violence against women, access issues and
mental health.
Report of Committee Chairs meeting
Richard Cook went to the last meeting,
as Mark was unavailable.
Congress 2008
Peter said this is a short report; We had a problem with equality fringe
events clashing and we must ensure this does not happen again and we were asked
to take this back to our unions?
Malcolm and Coleman
The committee had a very good report on
good and bad legal decisions that had been made.
Date of next meeting: 22 January 2009
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