National Report: The Legal Assessment of Disability Employment Rights in the United Kingdom

This project is co-funded by the European Union and the Republic of Turkey

Authors: Bob Bates Ian Henshaw 2015

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National Report: The Legal Assessment of Disability Employment Rights in the United Kingdom

Authors: Bob Bates Ian Henshaw 2015

The Report Series of I Can Work! Project* National Report: The Legal Assessment of Disability Employment Rights in the United Kingdom

Authors: Bob Bates Ian Henshaw

* I Can Work! Project was funded by Civil Society Dialogue III – Political Criteria grant scheme which was implemented by European Union and The Ministry of European Union of Turkish Republic. The project was coordinated by The Spinal Cord Paralytics Association of Turkey with partnership of Praxis Europe (England), ROSCOS (Romania), Saglik-Sen (Trade Union of Health Sector Workers) İstanbul Branch No:1 (Turkey) between 15th October 2014 and 14th October 2015. The aim of the project is to analyse the current situation of the policies on the employment for persons with disabilities and to increase the capacities of NGOs to contribute to the improvement of political reforms on the employment rights of disabled citizens.

“This publication is produced with financial support of the EU and Republic of Turkey. The Spinal Cord Paralytics Association of Turkey is responsible from the content of this document and can in no way be interpreted as the opinion of the EU and/or Republic of Turkey.”

October 2015 © 2015, The Spinal Cord Paralytics Association of Turkey Address: Ataköy 7-8. Kısım, Mimar Sinan Villaları Karşısı, Rekreasyon Alanı, 34750 Bakırköy / İstanbul - Turkey Telephone: +90 212 661 1 661 www.tofd.org.tr contact@tofd.org.tr

Design: Fulya Hocaoğlu Paging Up: Bahadır Çınar

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“I CAN WORK!” PROJECT

As The Spinal Cord Paralytics Association of Turkey, we implemented the “I Can Work!”

Project which received grant under the Civil Society Dialogue Grant Scheme Program in partnership with Saglik-Sen (Trade Union of Health Sector Workers) İstanbul Branch No:1 (Turkey), Romanian Spinal Cord Society (ROSCOS) and Praxis Europe (UK) starting in October 2014 for one year.

We intended to investigate through our project the work done in Turkey and other European Union member countries at the policy level in terms of the employment of the disabled.

Therefore, we organized study visits to Romania and the UK. During these study visits, we not only found the chance to learn the policies of these countries on the subject, but also visited the institutions carrying out work in different fields and observed the reflections of these policies on everyday life.

At the end of the project, we learned the system philosophies of the EU countries and we developed policy proposals in order to contribute to the current policy of Turkey during workshops in our seminar where we evaluated the policies regarding the employment of the disabled and where the public and the civil society came together.

One of the most important pillars of this project was the academic reports prepared during the project. It makes us very excited that these reports are going to cover a serious deficiency in the field. I hope our national reports that examine the Turkish, the United Kingdom and Romanian systems in-depth and also our comparative report comparing Turkey with the European Union countries will shed light on everybody who wants to work on these issues.

We sincerely hope that our dialogue that we developed in this field with our partners will continue in our future work as well.

Burak Keskin - Project Coordinator www.icanworkproject.com

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CIVIL SOCIETY DIALOGUE FULL SUPPORT FROM THE EUROPEAN UNION AND TURKEY TO INTERNATIONAL DIALOGUE It is an indispensable part of the membership process for the societies in Turkey and European Union member countries to know each other better, to exchange information and come together in terms of their social values, judgments and lives. At this point, both the European Union and Turkey support the projects constituting the grounds for such convergence within different programs.

This Civil Society Dialogue Program carried out by the Ministry of European Union since 2008 continuing its third period is one of these initiatives. The non-governmental organizations from Europe and Turkey develop joint projects on the determined subjects for each period under the program. Many studies have been carried out in Europe and Turkey under these projects which constitute an important place in starting a strong dialogue between societies.

In the new term starting in October 2014, 55 projects developed by the non-governmental organizations and media institutions active in a European Union member countries or Turkey are being supported with grants.

39 projects out of the 55 projects are the ones designed under the main subjects of fight against discrimination, human rights, democracy and the rule of law which are on the agenda of Turkey and European Union. There are 16 projects implemented on media which is another pillar of the program. These projects aim at informing the public on the European Union Turkish relations, enlightening about the steps taken in the membership process and the obtained results and strengthening the mutual understanding between the European Union and Turkish society.

www.civilsocietydialogue.org

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PREFACE

The Spinal Cord Paralytics Association of Turkey (TOFD) has played an important role in increasing the quality of its services and developing of the visions of its team, and employees and executives of different non-governmental organizations, institutions and enterprises; and has contributed diligently to the creation of national and international projects performed in cooperation with the central government, local governments, universities, and NGOs(Nongovernmental Organizations); and has successfully completed all of these projects.

Significant studies were carried out on the applicability of many of the reported examples to our country in the study visits held abroad within the scope of the projects. We also guided the transfer of some information on the improvement of the knowledge, conduct and quality of life of people with disabilities which are developed, yet still absent in our project partner countries.

It is a fact that the right to work is one of the key elements for each individual. In the research we performed 15-20 years ago, the employment rate was observed to be very low even for the disabled individuals working in the public sector. We identified how important it is for the disabled to join production life based on the work analysis, capacity, conditions, and problems of the disabled in the work life; and paved the way for the disabled to take up a respected position in the society by pioneering the removal of the barriers in front of them. All the projects have shown how important the public-civil society dialogue is.

In our "I Can Work!" Project, the previous experiences and researches of our foreign partners ROSCOS and Praxis Europe have led us to cooperation with them. Joining the Sağlık-Sen (Health Union) Istanbul Branch No 1 which carries out the related studies on the disabled employment to the project as a partner, we have completed our joint study in the international arena with success and maximum benefits.

Our country and comparative reports generated for the project have been prepared by experienced professionals/ academics in the field determined by us. I believe that all institutions and organizations which are working on the issue from different perspectives such

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as project partner institutions and organizations, related ministries, bar associations, universities, local governments, trade unions, business and civil society can benefit from the project result reports in the most efficient manner.

I offer my gratitude to the Ministry of the EU supporting us in every phase of the project; and I wish the dialogue we have established between the Public and NGOs continues after this point.

Ramazan BAĹž - The President of TOFD

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Abstract This report is one of three reports being commissioned by The Spinal Cord Paralytics Association of Turkey (TOFD) to compare the current situation of disabled employees in Turkey, Romania and the UK. The report writers have experience of working in the UK government’s employment services, researching into issues affecting disadvantaged groups and policy work (see authors’ CVs in Annex 1).The report looks firstly at defining disability in a workplace context and the statistics relating to people with disabilities in the workplace and unemployed. The report then reviews how government policy relating to the employment of people with disabilities has changed from a culture of compliance to one of persuasion and education and analyses the effects of this. The report concludes with a 7 point plan outlined in the recommendations which provides the foundations for an effective employment service for people with disabilities.

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Contents

Page

Research Methodology & Acknowledgements........................................................................9

Section 1:

The Concept of Disabled People and Disabled Employees............................12

Section 2:

Constitutional Provisions and International Conventions about Disability and Disabled People’s Working Rights...............................15

Section 3:

Analysis of the Legal Regulations Concerning Disability and the Rights to Work for Disabled People: From a Culture of Compliance to One of Persuasion and Education.........................................30

Section 4:

A Review of Current Intervention Measures to Support the Employment of People with Disabilities..................................................35

Section 5:

Conclusions & Recommendations: What’s Worked and What Hasn’t?...................................................................................................53

Bibliography.............................................................................................................................63 Annex 1: Authors’ CVs...........................................................................................................65

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Research Methodology, Acknowledgements& Glossary of Initials Used There are two aspects to this research. The first is a desk review of policies and practices relating to the employment and working conditions for people with disabilities in the UK since 1944 to current legislation. The second is primary research involving disabled people and the organisations that support them.

Two workshops were run consisting of specialist employment officers. The theme of these workshops was to explore how well policy and practice has worked over the 70 years of government intervention.Intelligence gathered at the workshops was supplemented by interviews with a number of disabled people and a range of support agencies and campaigning groups.

We are indebted to the following for their help in the primary research: Roy Cadman: Walsall Independent Living Unit Amy Carter: Lancaster Independent Living Support Pete Middleton: Birmingham Disability Resource Centre Clive Thomas: Remploy (West Midlands) Conrad Roe, Tricia Hatton, John McConnell: Former DROs Rose Jenkins and Sharon Harper: DEAs Alan Shaw and Barbara Naylor: Employers Moira Kelly: West Midlands Government Office Warren Dabbs: Disabled Persons Job club Advisor Len Hardy: Veterans Contact Point David Rathbone, Chris Jeffries, Anneka Goodyear, Sumiah Habib, Basil Vasilou and Joe Kanard: Disabled People.

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Glossary of initials used in the report:

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BASE

British Association for Supported Employment

CRPD

Convention on the Right of Persons with Disabilities

DAS

Disablement Advisory Service

DDA

Disability Discrimination Act

DEA

Disablement Employment Advisor

DHP

Discretionary Housing Payment

DRO

Disablement Resettlement Officer

DRS

Disablement Resettlement Service

DWA

Disability Working Allowance

DWP

Department for Work & Pensions

CJEU

Court of Justice of the European Union

ESF

European Social Fund

FE

Further Education

GOV.UK

Government Web Site

NDDP

New Deal for Disabled People

ODI

Office for Disability Issues

ONS

Office for National Statistics

PACT

Placing, Advisory & Counselling Teams

RTC

Residential Training Colleges

SME

Small Medium Enterprises

SROI

Social Return on Investment

UC

Universal Credits

UK

United Kingdom

UN

United Nations

WCA

Work Capability Assessment

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1. The Concept of Disabled People and Disabled Employees 1.1

In order to be classified as a disabled person under the 2010 Equality Act, an

individual has to demonstrate that they have a physical or mental impairment and that the impairment has a substantial and long-term effect on their ability to carry out normal day-today activities. The focus of the statute is therefore on the individual and not on the disability.

Within the Act there is not a list of disabilities that are categorised as automatically enabling a person with that disability to be classified as a disabled person. There is however a limited number of specified conditions, for example, the Act does consider persons with HIV infections, Cancer or Multiple Sclerosis to be disabled from the point of diagnosis and are therefore protected by the Act. In addition, those certified blind, severely sight impaired or partially sighted by a consultant ophthalmologist are deemed to have a disability (Equality Act, 2010, Schedule 1).

1.2

According to UK disability statistics published in 2014 by The Family Resources

Survey there are just over 12 million people with disabilities in the UK. This represents nearly one-fifth of the total population in the UK. Approximately 80% of people with disabilities acquire their disability after birth and many have to make serious adjustments to their lives as a result of this.

1.3

According to government figures (GOV.UK) there are estimated to be 6.9 million

people with disabilities who are of working age, of which 44% are economically active. This compares to almost a quarter of that figure for people without disabilities (Papworth Trust; 2013, Rowntree Foundation; 2014).

1.4

Just over 50% of impairments are related to lifting and carrying restrictions with just

over 1 million wheelchair users (English Federation of Disability Sport 2014). There are also nearly 2 million adults who are considered to have a hidden disability such as a learning disability or mental illness, with around a quarter being classified as having a serious disability (Papworth Trust; 2013). The employment prospects of people with a hidden disability vary considerably with around 35% of people with learning disabilities being in employment compared with only 22% of people with mental illnesses.

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1.5

In terms of sensory impairments, there are over 1.87 million people in the UK with

sight restrictions or total loss that may impact significantly on their lives (NHS Information Centre; 2014) and close to 10 million with some degree of hearing impairment or deafness (Action on Hearing Loss; 2014). Around 30% of people with sight or hearing impairments are of working age. The employment rate for people with sensory impairments is estimated to be less than 50% and less than 33% for those with severe sight or hearing impairments.

1.6

In terms of preparation for work, adults with disabilities are 33% more likely to

experience barriers to educational opportunities and 16% more likely to experience barriers to training opportunities (Office for National Statistics). As a consequence of this, adults with disabilities are between two and three times more likely to have to have no formal qualifications than adults with no disabilities (Papworth Trust; 2013 and The Office for Disability Issues; 2012) with 14.9% of working age people with disabilities having degreelevel qualifications, compared with the national average of 28.1% (GOV.UK).

1.7

People with disabilities in work are more likely to be in low status, unskilled

employment with only 12% in professional or managerial positions compared to 21% of ablebodied workers. They are estimated to be paid about 10% less than non-disabled people (Scope 2014) and one in six of people with disabilities who become disabled while in work lose their employment within the first year of acquiring the disability (Papworth Trust; 2013).

1.8

Thirty per cent of people with disabilities reported having received unfair treatment at

work (UK Commission on Employment & Skills), including workplace bullying or harassment because of their disability. They also thought that workplaces were inflexible to their needs.

1.9

In terms of access to and around the workplace, 60% of people with disabilities have

very limited or no access to cars to take them to work (compared with 27% of the overall population) and 75% experience barriers to using public transport (compared with 60% of the overall population). Of the 78,000 licensed taxis in the UK, 58% are wheelchair accessible and by 2017, according to the Department of Transport, all public transport buses will be fully accessible for all people with physical impairments (Papworth Trust; 2013).

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1.10

In terms of education, there are approximately 1.5 million pupils (17.9% of the total

number of school age children) with special educational needs, stemming from physical or mental impairments (Department for Education; 2014). Around 50% of children, aged 516,with disabilities will have mental health disabilities, with just less than 10% of this figure representing children with autistic spectrum disorders (Papworth Trust; 2013). Educational achievements amongst pupils with special educational needs (SEN) has improved over the past 10 years with an increase from 19.8% to 59.2% for SEN pupils without additional learning support (statements) with five or more GCSEs (the UK general educational certificates) at grades A-C, and an increase of 8.7% to 24.9% for SEN pupils with statements.

This compares to an increase from 66.3% to 88.9% for pupils without special educational needs (GOV.UK).

1.11

From a pan European Union perspective, disabled people represent 80 million persons

in the European Union (more than 15% of the EU population). It is the equivalent of the population of Belgium, Czech Republic, Greece, Hungary and the Netherlands all together.

The more severe the degree of disability, the lower the participation in the labour force(only 20 per cent of people with severe disabilities compared with 68% for those without disabilities). People with disabilities are more than 50% less likely to reach tertiary education compared to non-disabled people and 38% of disabled young people (in the age range 16-34) across

Europe

are

not,

or

have

(http://ec.europa.eu/news/justice/101115_en.htm)

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never

been,

in

paid

employment.

2. Constitutional Provisions and International Conventions about Disability and Disabled People’s Working Rights 2.1

The Legal Structure in the UK

In this section of the report we review government policy in the UK towards disability law and the rights of people with disability in the workplace. It places current UK provisions within a contextual framework of why disability equality law was necessary, how this responds to international conventions and what rights people with disabilities have in the workplace. To understand developments in disability law it is first necessary to understand that the law derives from two main sources, which are: •

Acts of Parliament and Statutory Instruments enacted under powers given by the Acts.

These are known as statutory sources and include European Union Legislation.

Statutory sources take precedence over other laws.

•

Common Law – often known as case law. This includes decisions by judges in individual cases, which are often, but not always, interpretations of statutory sources.

Common Law can include decisions by Tribunals. There is a system of precedence in Common Law, based on a hierarchy of Courts, with the Supreme Court as the ultimate UK Court. The Supreme Court is bound by relevant decisions of the European Court of Justice.

In England, Wales and Scotland, the majority of cases relating to employment issues are first heard in Employment Tribunals (formerly called Industrial Tribunals). There is an appeals procedure, where appellants can have their case heard by an Employment Appeal Tribunal (EAT) and if necessary by the Court of Appeal in England and Wales and the Court of Session in Scotland. In Northern Ireland, cases are first heard in Industrial Tribunals and appeals by the Northern Irish Court of Appeal. In all jurisdictions, the final domestic court is the Supreme Court.

The Court of Justice of the European Union (CJEU) is the highest court in the European Union (EU), outranking national supreme courts. The CJEU interprets EU law to make sure it is applied in the same way in all EU countries. It also settles legal disputes between EU

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governments and EU institutions. Individuals, companies or organisations can also bring cases before the Court if they feel their rights have been infringed by an EU institution.

2.2

The 1944 Disabled Persons (Employment) Act

In terms of relevancy within a modern context we will look at legislation introduced in the UK beginning with a statute to deal with the employment rights of people with disabilities in 1944.

The Disabled Persons (Employment) Act was a measure introduced towards the end of the Second World War to help returning disabled servicemen to find employment. This Act made provision for the establishment of a register for disabled persons, and the provision of rehabilitation and training. These were specifically for people with disabilities and placed a duty on employers of more than 20 people to employ a quota of 3% of registered disabled people. Although the public sector was exempt from any legal obligations under the Act, there was general agreement that they would abide by the same provisions and, over the period that the quota scheme remained in operation, the public sector had a better record of employing people with disabilities than the private sector.

The 1944 Act also gave the Secretary of State for the Department of Employment the right to designate certain occupations as reserved for people with disabilities. Electric passenger lift operators and car park attendants were examples of reserved occupations. It was considered to be an offence to employ an able-bodied worker in a reserved occupation without the permission of the Department of Employment. The system of reserved occupations is common in other European countries, for example in Denmark and Greece where people with visual impairments are given priority treatment for employment as telephonists and in Italy for teachers and physiotherapists.

Under the 1944 Disabled Persons (Employment) Act, registration as a disabled person was voluntary. Employers were expected to give preferential treatment to registered disabled applicants and, if they came under the scope of the Act (not public services and employing more than 20 people), they had to apply for permission to the Department of Employment to recruit able-bodied workers. Specialist officers; Disablement Resettlement Officers (DROs) were recruited to advise employees on their obligations, help them to recruit suitably qualified

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people with disabilities and instigate enforcement procedures against employers who refused to comply with the provisions set out in the act.

2.3

The 1995 Disability Discrimination Act

Despite the undisguised intention of governments from the mid-1970s onwards to abolish the quota system, the Disabled Persons (Employment) Act remained the main measure for disability rights in the UK for over 50 years until 1995 when, after 18 bills had been presented to parliament and failed, the government finally introduced the Disability Discrimination Act (DDA). At the time of its introduction, it was considered to be groundbreaking legislation, based on existing sexual and racial discrimination. It can be seen as a direct response to disability campaigners and the European Commission’s Green Paper on European Social Policy

(http://uk.qatrain2.eu/european-policy-on-disabled-people-and-the-position-of-

disabled-people) The main thrust behind the DDA was to replace the policy of enforcement with one of persuasion and education; believing that the most effective way to promote job opportunities for people with disabilities is to get employers to recognise the abilities of disabled people and putting forward a business case for employing them. The Act, which was still limited to employers of 20 or more, included a duty on employers to take steps as it considered reasonable to adapt working conditions or the working environment to enable the employment of a person with an identifiable disability. Between 1995 and 2010, there were several extensions to the DDA and a major amendment in 2005, which included the removal of the small business exemption (which was estimated to have excluded 95% of UK businesses) and greater protection for people with disabilities in terms of their access to public services.

2.4

The 2010 Equality Act

From the 1st October 2010, the Equality Act replaced the Disability Discrimination Act. The Equality Act had much wider implications for people with disabilities than employment. It covered disabled people having the right to goods, services, facilities and premises and made it illegal for employers to discriminate against or harass a disabled person. This covered: •

Application forms

•

Interview arrangements

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•

Aptitude or proficiency tests

•

Job offers

•

Terms of employment (including pay)

•

Promotion, transfer and training opportunities

•

Dismissal or redundancy

•

Discipline and grievance procedures

The Act also compelled employers to make reasonable adjustments to their premises or working practices to assist disabled people in their work. This duty requires the employer to have knowledge of the person’s disability and the fact that they would be placed at a substantial disadvantage compared to others in the workplaces who are not disabled.

The Equality Act is the current statute of anti-discrimination law in the UK. Historically, it follows laws on sex discrimination (1975) and race discrimination (1976) which were UK developments; and the laws on sexual orientation (2003), religious beliefs (2003) and age (2006) which were the results of European Union laws. Much of the legislation in the Equality Act that relates to the employment of people with disabilities is based on the Disability Discrimination Act and includes a number of notable features drawn from sex and race discrimination laws. These include: •

Direct Discrimination: This is direct discrimination against a disabled person on the basis of their disability. An application for promotion from a woman with epilepsy is turned down because the firm believe that her illness will prevent her from gaining the respect of the team she will be managing.

•

Indirect Discrimination: Where an act, although not with the deliberate intent of being discriminatory, will put the disabled person at a serious disadvantage. An employee has to have regular dialysis treatment at hospital. This takes place on the weekend to avoid having to lose time at work. The firm have a rush order on and request that all workers work weekends until further notice. This request will seriously affect the employee’s medical treatment.

•

Discrimination by Association: Discrimination against a person because they are associated with someone who has a disability. A firm hears that both the mother and

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father of an employee have serious illnesses. They dismiss the employee amidst fears that they may contract the same illness.

•

Perception Discrimination: Someone is treated worse than their colleagues because of the way they look. Someone with Down’s Syndrome is taken away from serving customers because of fears that sales will drop when customers see them.

•

Third Party Harassment: Although the workers themselves may not be perpetrators of the harassment acts, their adverse reaction to the victim may be considered to be third party harassment under the act. A shop’s workers complain that they are fed up of having to listen to remarks from the public about the looks of a colleague with hydrocephalus. They ask the shop manager to move the colleague to a back room job.

•

Victimisation: An employee is treated badly because they complained about discrimination against them. An employee complains about mistreatment by their supervisor because of their disability. The supervisor is disciplined but the staff turns on the employee who made the complaint and refuse to work with them.

The focus of the statute is on the individual, not the disability. In this respect, the onus is on the individual to prove that they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out day-to-day activities. Most legislators feel that it will be difficult to enforce certain aspects of the statute because of the vagueness in terms of definition of the four key elements: physical or mental impairment, substantial and long-term adverse effect and normal day-to-day activities.

Firstly, the act offers no definition of either physical or mental impairment. Guidance offered by the Office for Disability Issues (ODI) admits that there is no medical substance to either impairment contained in the statute and that the term should be given its normal meaning. This is both confusing and problematic for the claimant on whom the responsibility for proving impairment lies. The case studies used in this section are based on real life cases.

Alcohol addiction is not considered to be impairment. Claimant A has a liver disease as a result of their alcohol dependency and has to have regular treatment. Liver disease is considered to be impairment under the act. When A makes a claim to be recognised as a disabled person what do they cite as the cause of the impairment?

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Secondly, the definition of the term substantial as being “more than minor or trivial� has to be considered in the context of what the individual can or cannot do as a result of their impairment.

Claimant B works as a model for a cosmetic firm. After a facial injury, she has a minor scar on her left cheek. This could be considered a substantial impairment because full-face photo shots are no longer feasible. It could also be considered minor or trivial because right-sided profile shots are possible and B could easily find work in other fields not connected with modelling.

What may also have to be taken into consideration in the above case is the possibility of psychological damage arising from the injury. In this respect, impairments may be amalgamated to constitute a disability within the act, even though each impairment may in its own rights not be considered a disability.

Thirdly, long-term is defined in the act as lasting for 12 months or more or being likely to last for 12 months or for a lesser period if the applicant is going to die within that period. Where the impairment is considered to be sporadic or episodic, for example a mental illness or epilepsy, then it is considered to be long-term even though at the time of application, the claimant’s illness may be in remission.

Claimant C is diagnosed as having Post-Traumatic Stress Disorder (PTSD). His symptoms are described as loss of sleep, fatigue, anxiety and depression. Although none of these symptoms could be described as long-term, the nature of PTSD is that they could be replaced by other symptoms that may be more disabling. Without a clear indication of the disability being long-term, registration as a disabled person was not possible.

The Equality Act removed the list of normal day-to-day activities that were included in the Disability Discrimination Act. The list, including things such as freedom of movement, ability to lift and carry, continence and manual dexterity, provided a useful reference point for determining what constituted normal day-to-day activities. The ODI do offer some guidance on this issue and emerging case law is constantly adding to this.

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Claimant D has hydrocephalus. He works as an assistant in a garden centre. His disability makes it difficult for him to bend and lift heavy bags of soil. He can however perform a range of normal day-to-day activities such as lifting a full kettle or loaded tray. Under the 1944 disabled persons registration scheme he would be clearly registerable but may have difficulty proving this under the Equality Act. There is some debate about whether the UK definition of normal day-to-day activities is compatible with European Union (EU) laws on this issue. The Court of Justice of the EU has ruled that a person can be considered to be disabled if their impairment “hinders the participation of the person concerned in professional life over a long period of time”. This definition is much broader than that used in the UK statute, with no clarity on the actual period of time. In D’s case however, according to EU law he would clearly be registerable as “professional life” covers working life.

2.5

Reasonable Adjustments

The obligation on an employer to make reasonable adjustments to working arrangements and premises is probably the most significant aspect of the Equality Act related specifically to disability and is central to the idea of disability rights in UK law. The law applies to disabled employees and makes no provision for carers or employees who are associated with the disabled worker.

Claimant E is a wheelchair user. His carer, and also his brother, is profoundly deaf. There is no obligation on the employer to install flashing warning signs in the event of a fire alarm.

In order to compel an employer to make reasonable adjustments, it must be proven that the disabled employee is at a “substantial disadvantage” without the adjustments. In determining what is to be considered reasonable, factors such as cost and effectiveness are not considered to be decisive and employers cannot use this as a defence against not taking reasonable steps.

Adjustments which may be considered reasonable include adaptions to the workplace and equipment and changes to working practices and job descriptions. A combination of adjustments may be necessary to prevent the disabled employee from being disadvantaged and there is no expectation that the employee has to demonstrate they are at a disadvantage or

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should be expected to pay towards the costs of the adjustments. Most cases of adjustments are relatively straightforward and inexpensive.

Claimant F works as a clerical assistant in a government department. Following a back injury, he was unable to sit for long periods. His employers allowed him to have a reduction in working hours until such a time that he could resume full duties. As the change in working hours was not permanent, the adjustments were considered acceptable.

Some cases are more complex: Claimant G works as a lecturer whose vocal cords were permanently damaged. Her employers felt that she was incapable of performing her duties as a lecturer and retired her on medical grounds. The tribunal ruled that they had made no attempt to make reasonable adjustments and were therefore guilty of disability discrimination. The employer’s defence that the costs of providing additional classroom support were too extortionate was rejected by the Tribunal.

Claimant H works as a road sweeper. After a fall at work, her mobility was severely restricted. Her employer tried to make reasonable adjustments by offering her office-based work but this work was considered to be at too high a level. The tribunal ruled that the employers should still have offered her the office job even though there were better qualified workers.

In the case of H, the ruling was that a disabled worker has to be treated more favourably than a non-disabled worker. It should be noted that in UK law, ‘favourable treatment’ does not mean that H should automatically be preferred to another candidate, but rather should H and another candidate be deemed a similar level, then it is acceptable that H will be preferred. Rather than preferential treatment, which is acceptable, in H’s case, the employer was being asked to exercise positive discrimination, which according to UK law isn’t acceptable. The tribunal’s ruling therefore appears to conflict with the legislation.

2.6

Positive Discrimination

The concept of positive discrimination is a controversial one and something that usually causes heated debate. Those who advocate against positive discrimination point to the fact that

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discrimination of any kind is wholly wrong and unlawful. They claim that while it is unfortunate that certain minority groups have been prejudiced against in the past, by implementing a system of positive discrimination the problem is not helped.

It is argued by those against positive discrimination that not only is it wholly unfair to favour somebody on the basis of their background, but also that the whole process leads to more division in society. The reasoning for this is that people who have failed to get jobs as a result of positive discrimination, or even those that haven’t but assume they have, may resent certain parts of society that have been favoured, and society as a whole suffers as a result.

Proponents of positive discrimination, or affirmative action as it is referred to in the US, point to the fact that the best, or at least most well-paid jobs in society tend to go to people from majority social groups. While a growing percentage of the population come from groups that were previously discriminated against, there are still only a small percentage of these people being represented in top-level jobs. This seems to show that clearly they are still being discriminated against. Supporters of positive discrimination claim that this means there is a problem with the way top jobs are filled and therefore positive discrimination, used when there are two similarly skilled candidates, is the best way to resolve this.

2.7

Disclosure

Under the Act, there is no obligation on a disabled person to notify an employer (or prospective employer) of their disability. In choosing to do so, they are entitled to ask the question “what relevance does it have to have to the recruitment process?”

The reasons often given for not disclosing disability include: •

The disability may have no effect on an individual’s to do the job and it is therefore not necessary to disclose.

•

It may provoke unnecessary curiosity, concern and insensitive questions.

The reasons for disclosing disability include: •

Disclosure generates trust and an open relationship between the individual and their employer. It allows discussion on the most effective workplace adjustment strategies.

•

If the disability is visible, the individual can deal with misconceptions and show how working with a disability can be ‘business as usual’.

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•

If a crisis occurs related to the disability it may be difficult to implement work adjustments quickly unless the disability has been disclosed.

•

If the disability impacts on an individual’s job, an employer may perceive this as poor work performance.

•

If the disability could reasonably be seen to cause a health and safety risk for other people at work, failing to disclose that risk could breach of an employee’s obligations under work health and safety legislation.

Regardless of legal obligations and legislation, being part of a culture where people feel able to disclose is a major influence upon the decision to do so. When asked “What would make you feel more confident about disclosing?” one disabled person interviewed said that, “seeing others come forward and progress were the most important factors apart from legislation. If you come forward it is more likely that others will follow”.

Employers and individuals alike play a role in shaping this culture. Employers should be aware that in doing so they create a happier and more efficient workforce. It is more costeffective in the long term to plan adjustments than to correct unpredicted mistakes. Individuals have to make a judgement call between whether they feel disclosure will seriously affect their chances of employment and any subsequent loss of trust this may create if the disability becomes known at a later stage.

2.8

The 2010 Welfare Reform Act

The Welfare Reform Act 2012 gained Royal Assent on 8th March 2012. The Act facilitates the greatest shake-up of the benefits system in the UK for over 60 years.It introduces changes to virtually every form of benefit including the way benefits are paid. The scope of the Act changes the design of the UK benefit system with the aims of achieving simplification and transparency, incentivising (and smoothing) progression into work and contributing to, along with the work programme, an initial £18bn in savings from welfare.

In addition to consolidating 7 benefits into one core payment, there are a number of other process changes that are likely to impact on disabled people, including: •

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Online access to Universal Credit

•

Direct payment to bank

•

Direct payment to individuals (rather than landlords) of housing benefit

•

Under occupancy charge for those in social housing (the Bedroom Tax)

•

Abolition of community care grants and crisis loans and replacement with local authority based ‘Social Fund’ schemes

•

Benefit Cap

•

Separation of Council Tax relief from Housing Benefit

The Act and its implementation has elicited considerable concerns, condemnation and anxiety across the welfare and disability rights sector as the impact on disabled people has been significant.

The existing benefit system was seen as complex, with the government’s 2010 White Paper Universal Credit: Welfare That Works, noting that it has an array of benefits, each with its own rules and criteria. In order to address this, the government has set its store on streamlining the benefits system and to make it more readily understandable. It sees the complexity of the system as a barrier to work, as benefit claimants are reluctant to work additional hours because they cannot be certain about the effect of any change on their benefit award, due to the number of different benefits and administration bodies involved.

The government believes that the current system traps people on benefits. It acknowledges that reducing benefits by a pound for every extra pound earned does not provide an incentive for work, as the individual is no better off for their additional effort. In practice, it argues that the current system can throw up marginal deduction rates of over 95 per cent. Therefore incentives to work must be built into the system.

Alongside this, it was politically determined that no household dependant on benefits should be better off than the median working income, resulting in the introduction of a benefits cap: •

£500 (677 Euros) a week for couples (with or without children living with them)

•

£500 (677 Euros)a week for single parents whose children live with them

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•

£350(474 Euros) a week for single adults who don’t have children, or whose children don’t live with them

Housing Benefit will be the element adjusted for those exceeding the cap values. There is a range of exceptions, including those receiving working tax credit and vulnerable groups, including people with disabilities.

The government’s vision is for benefit payments to mimic the payment of a wage or salary.

Universal Credit will therefore introduce direct payment to claimants a month in arrears. The government argues that this measure will ensure a seamless transition into paid work and remove the barrier presented by weekly or fortnightly benefit payment ending and causing hardship while new workers wait for their first payment of wages or salary.

There will be exceptions to the presumption of direct payment to claimants and safeguarding the claimant’s home is the first priority for the Universal Credits (UC) advisor when developing a different mix of payment methods/schedules. ‘Vulnerable’ individuals, such as people with disabilities are expected to retain direct payment eligibility.

2.9

The European Social Fund – Supporting Disabled People with Learning and

Employment Each year the European Social Fund (ESF) helps millions of Europeans improve their lives by learning new skills, securing employment and finding new jobs. ESF gives priority to groups considered disadvantaged in the labour market, one such group is identifiable as the disabled, although clearly disabled people are likely to also fall into other priority groups too. In the UK, as across Europe, disabled people have benefitted from the funding that has often complimented mainstream employment and skills services and provided opportunities for many people that would not otherwise have been available.

The ESF has supported projects designed solely for disabled people to provide specific support. In addition, other projects and services aimed at unemployed people have to provide inclusive approaches that enable disabled people to participate and for some their disability may not be the most significant barrier to learning or employment. There are many examples of projects that have been developed through the support of the ESF and a good practice guide

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was produced by the ESF Division of the DWP in 2013 which provides examples of effective practice in the UK context: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/314974/esfgood-practice-disabled-people.pdf 2.10

Legislation and the European Union

The principle of equality has been an element of the EU’s goals, legislation and institutions from its early days, and was first developed in the context of gender equality. The Treaty of Rome of 1957 required equal pay between men and women, and provided the framework for the development of the first Equality Directives (the Equal Pay Directive of 1975 and the Equal Treatment Directive of 1976), which prohibited discrimination on grounds of gender in access to employment, vocational training and promotion, and working conditions.

It was not until the Treaty of Amsterdam in 1997, however, that the EU introduced a specific power to combat discrimination on a wide range of grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. This power was set out in Article 13 of the Treaty of the European Community and had a significant impact. It led both to the introduction of a series of new Equality Directives as well as to the revision of the existing Gender Equality Directives.

In recent years there have also been two other major developments relating to antidiscrimination law in the EU. Firstly, the powers and functions of the EU relating to equality and other human rights were recently amended and enhanced by the ratification of the Lisbon Treaty which entered into force on 1 December 2009 and made significant changes to the constitutional framework of the EU. Secondly, as a result of the Lisbon Treaty and other key decisions by the EU institutions, there is a growing convergence between the EU human rights frameworks and other intergovernmental human rights frameworks of the Council of Europe and the United Nations.

The United Nations Convention on the Right of Persons with Disabilities (CRPD) has a particular and special status within EU law because this Convention has been adopted by the European Union itself and on 23 December 2010 the EU, for the first time in its history,

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became a party of itself to an international human rights treaty which brings the UN Convention right into the heart of EU law itself and is something that is to be relied on and used as an aid to interpretation amongst all nation states of the EU. The purpose of the Convention is “to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities across a very wide scope of civic life”. It is far wider than just employment and covers voting rights, independent living, standards of living, social protection and mobility.

The CRPD provides a more expansive definition of disability. It includes the concept that there must be impairment, which must be “physical, mental, intellectual or sensory”. It must be “long-term” and it must “hinder the person’s full and effective participation in society on an equal basis with others”. It also describes the impairments in terms of their “interaction with various barriers”. The UN Convention definition therefore looks at the medical model (including physical, mental and intellectual impairment), but then combines that with a social model by looking at the interaction with various barriers which may then hinder the effective participation of the individual concerned. In other words it focuses attention on the barriers created by society in the way that work patterns are organised and by the physical features of the environment and sees them as part of the problem instead of it being the individual’s problem. It therefore takes a more collective, rather than individualistic, perspective on disability.

The UN Convention also does two more important things. Firstly, it requires state parties to consult with, and actively involve persons with disabilities, in developing and applying legislation and policies to implement the Convention. This is seen as important of itself because it both empowers disabled people in the formulation of policies which affect them.

Secondly, it increases the chance of ensuring that effective measures are introduced with the Convention placing particular emphasis on issues of legal capacity, and the immediate and pressing need to protect persons with disabilities from violence and abuse and hate crime attacks.

The effect of ratification of the CRPD is that all the EU institutions (including the European Commission and Court of Justice of the EU) must comply with the CRPD in developing,

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implementing and interpreting EU law. In practice this means that the EU institutions and Member States must interpret and implement the Framework Directive consistently with the social model advocated by the CRPD and its core human rights principles of respect for the dignity of disabled persons; their autonomy, participation and full inclusion in society, and non-discrimination.

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3. Analysis of the Legal Regulations Concerning Disability and the Rights to Work for Disabled People: From a Culture of Compliance to One of Persuasion and Education Measures, such as the quota scheme, which sought to achieve proportional representation through compliance, may have been introduced with good intent amidst the emotion of returning disabled ex-servicemen but failed to address the barriers people with disabilities were experiencing in accessing and keeping meaningful employment. In order to be effective, any enforcement procedure has to be implemented with a degree of intent. From 1949 to 1975 the Department of Employment only prosecuted six employers for failing to comply with the quota regulations, resulting in five convictions and fines totalling ÂŁ284.

Although supporters of the quota system argue that it is the threat of enforcement, not the actual act, that is important, the fact remains that the percentage of employers meeting the 3% quota targets diminished from 61.4% in 1961 (the last year when the average UK figures for meeting the 3% quota was achieved) to 41.8% in 1971 (when the average figure was 2.2%), 33.6% in 1981(when the average figure was 1.4%) and 20.4% in 1991 (when the average figure was 0.7%).

From the 1960s onwards, the process of issuing permits had become a routine exercise.

Employers applied for a bulk permit that would cover them for 6 months and, providing they did this, any abuse of the quota system was largely ignored. “We never really had the resources to monitor every vacancy and to propose suitable disabled candidates. It was a job in itself reminding employers to send in their applications for bulk permits every 6 months. We might sometimes remind them of their obligations to consider disabled people but never intended to take it any further�(comment from an ex-DRO).

The existence of the obligation on employers to abide by quota regulations was not wellpublicised. Many were genuinely not aware of the requirements to apply for a permit; which was very often an administrative function of junior office staff. A report commissioned by the government in 1990 found that over a quarter of firms had not heard of the scheme rising to 40% of smaller firms employing less than 100.

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At this time, the Department of Employment was undergoing structural change with the creation of the Employment Services Jobcentres, with a remit to service employers’ vacancies and helping unemployed people to find work. With the growth of private employment agencies during this time, the Jobcentres were in competition for vacancies and leaned over backwards to keep employers happy.

“The truth is that when we did have an employer who wanted to play ball, we didn’t have the right disabled candidates to service their vacancies. Most of the time I had to deal with people who wanted to register for a disabled parking badge. They didn’t realise that being registered disabled for employment purposes didn’t make them eligible for this. On reflection, the more skilled the individual, the less-likely they would be to register because of the stigma attached to this”(comment from an ex-DRO).

In a report commissioned by the Department of Employment in 1990, to find out why people with disabilities chose not to register, over 40% did not know about the registration process and a similar number felt that registration would not help them find work. This view was confirmed by the European Commission’s Special Euro barometer report 393 which stated that respondents with disabilities were less aware of disability rights than were the general population. The long-term decline in the numbers of people registering as disabled made it more difficult to service employers’ vacancies which in turn made enforcement of the quota system a virtual impossibility.

The UK was not alone in its use of the quota system. In Greece, a proportion of public sector vacancies had to be filled by disabled people and in Italy, disabled people were given priority when applying for jobs as teachers or physiotherapists. In France, the quota had been set at 6% but a system of weighting had been introduced whereby certain categories of disabled people were counted as more than others when quota was being calculated. In Germany a similar weighting system was in place which was based on the principle that all employers should contribute to the economic integration of disabled workers. Variations on the quota scheme included a temporary levy that was introduced in Sweden in 1989 that compelled employers to contribute 1.5% of the company’s total wage bill to a Working Life Fund that was

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redistributed for rehabilitation at work and for adjustments to the workplace and working practices to enable disabled people to function effectively.

Clearly, in the UK, the quota scheme was proving ineffective in promoting the employment of people with disabilities. Between 1973 and 1991, the governments of the day commissioned reviews of the quota system, which all confirmed its ineffectiveness and recommended abolition. Pressure from supporters of the quota system, who wanted stronger enforcement measures, and the failure to find a viable alternative forced the government to shelve its plans to abolish the system and instead come up with a series of short-term programmes such as the Fit for Work campaign in the Late 1970s and the Job Introduction Scheme for Disabled People (still operational in Northern Ireland).

“Fit for Work was a joke. We had a stock of paper weights and beer mats that we could award to employers who demonstrated good practice in recruiting disabled people. We were also under pressure to nominate employers for a national award. The truth is we had difficulty getting rid of the prizes and the only firm we nominated was an employer who made some minor adaptations to premises to enable one of their disabled employees to gain access to work areas”(comment from an ex-DRO).

Although the Fit for Work campaign had little impact on improving the employment prospects of people with disabilities, it did mark a seed change in government policy away from compliance to one of education and persuasion. The emphasis on the programme was to look at what the disabled person can do and not what they can’t do. Instead of treating people with disabilities as special cases who needed extra support to enable them to be productive, the notion of creating a business case around what extra skills and personal qualities a person with disabilities can bring to an organisation was exploited.

“I had a standard line that went something like ‘This person has been out of work for nearly a year because of being disabled. Give them an opportunity and they will make extra efforts to prove they can do the job’. We were able to offer financial inducements to firms to take on a disabled person for a trial period. It was only a small amount of money but was a bit of a carrot to some firms, especially the smaller ones. To be fair we did have some success with this approach”(comment from an ex-DRO)

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By the mid-1990s, government policy towards employment was constrained by their desire to want to maximise the freedom of individuals and businesses, to avoid interference with the operations of the market, to minimise the costs to private enterprise and to reducing the size of the public service. The scrapping of the costs in terms of the time and money being devoted to outdated systems, such as the quota system, and the relative success (albeit not to the extent that many wanted) of programmes of persuasion and education was the pre-cursor to the Disability Discrimination Act (DDA).

Until the introduction of the DDA, disabled people were not protected against discrimination when seeking, or in, employment. The Act introduced legislation to protect people with disabilities whose disability make it substantially difficult for them to carry out their normal day-to-day activities.

A major criticism of the DDA was that it was placed on the statute books without the provision of an effective and strategic means of enforcement. Without a substantial body of enforcement, such as a Commission, capable of funding and supporting people with disabilities complaining of discrimination the DDA was considered toothless. The government’s claim that Non-Government Organisations (NGOs), such as the National Disability Council (NDC) would be better placed to deal with disability discrimination than similar Commissions set up to deal with complaints of race or sex discrimination did little to inspire confidence in the powers of the DDA to address discriminatory acts.

It was hoped that the extended rights under the DDA would significantly increase the chances of disabled people to obtain and remain in employment. Critics on the other hand point out that additional costs imposed on employers by the legislation lower the employment prospects of disabled people rather than raise it. Some critics argue that the creation of “second-best” legislation and the prevalence of exemption clauses within the DDA effectively meant that in practice, some instances of discrimination would not only be tolerated but condoned.

On 1st October 2010, the main provisions of the Equality Act 2010 came into force. Billed as a major step for discrimination law, the aim was to deliver a simple, modern and accessible framework to protect individuals from unfair treatment and promote a fair and more equal society. Critics of the Act however argue that there is little new in the Act and that an

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opportunity was missed to take greater steps to protect employees. Certainly, some of the more controversial provisions of the Act, such as combined discrimination, gender reporting requirements and positive discrimination in recruitment and promotion languished in the employer’s "wait-and-see" basket with no clear indication as to when they might be implemented in the future.

For most purposes, the law has simply been codified and many employers might be tempted to continue without making major changes to policies or behaviour. With employment law, though, as always, it is the subtle changes that will catch out the unwary and for some employers the need to deal with issues such as ‘associative discrimination’, ‘perceptive discrimination’ or “responsibility for the acts of third parties” may come as a total shock.

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4. A Review of Current Intervention Measures to Support the Employment of People with Disabilities The largest proportion of funding for intervention measures to support the employment of people with disabilities lies in Jobcentre Plus and Work Programme providers. This part of the report reviews a range of intervention programme currently in place and a number trialled by successive governments since the inception of the Disabled Persons (Employment) Act in 1944.

4.1

Disability Advisory Service

The Disability Advisory Service (DAS) lies within the network of offices known as Jobcentre Plus. Jobcentre Plus is the brand name given by the Department of Work and Pensions for its working-age support service in the UK. It was formed in 2002 by the amalgamation of two agencies: the Employment Service (which operated Jobcentres) and the Benefits Agency (which administered the payments of unemployment benefits). It reports directly to the Minister of State for Employment.

Jobcentre Plus is an executive agency that provides services primarily to those attempting to find employment and to those requiring access to the state’s financial provision for unemployed people. It is intrinsic to the individual’s efforts to achieve employment or, in all other cases, the provision of social-security benefit as the result of a person without an income from employment due to illness or incapacity.

Job vacancies are advertised for employers within each of the Jobcentre Plus offices. The offices use a government website named Universal Job match where jobseekers can search for employment and employers can upload and manage their own vacancies whilst searching for prospective employees. Services are provided in the first instance via in-house job-advisors and advisors who can be contacted via the telephone. Customers are able to access vacancy information through Job points (touch-screen computer terminals), via a website and a telephone service known as Jobseeker Direct.

After the post-war period of full employment and as the demand for labour declined, the special placement services established in tandem with the quota scheme became more essential. Officers of the Disabled Resettlement Service (DRS); Disablement Resettlement

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Officers (DROs) were increasingly trying to match unemployed disabled people to opportunities with targeted employers. One part of the DRO’s role was to build up a relationship with local employers so that they were receptive to disabled workers. This policy of education and persuasion sat uneasily with the officers' other function of enforcing the quota scheme.

The introduction of the Disablement Advisory Service in the early 1980s to provide specialised help for businesses and encourage them to develop 'good employment practices' left a separate and reduced DRS to work with disabled people. A unified service was reintroduced in 1992 in the shape of the PACTs (Placing, Assessment and Counselling Teams) which worked with both disabled applicants and with employers.

During this period, the trend had been to direct disabled people seeking jobs to mainstream services. A key element of the Department of Employment's strategy for the 1990s was formulated to ensure that, as far as possible, effective and accessible provision for disabled people was made in the Department's mainstream schemes and services. Now, the majority of disabled people helped by the Employment Services use the integrated mainstream services.

People who need extra help were served by the PACTs and Disability Employment Advisers (DEAs) who work within the mainstream service. Not all people with disabilities are happy with being dealt with under this system.

“It wasn’t easy making contact with someone from the Jobcentre. I was given a telephone number which was a call centre number. They took some details and told me someone would call me back. It took three days before I was able to speak to someone. They gave me a lot of information about how I could use the computer to access jobs but I really needed more than that. I wanted someone to listen to me and talk me through what options I had”(comment from a disabled person).

4.2 The New Deal for Disabled People The incoming Labour Government in 1997 introduced a number of welfare reforms, often referred to in terms of the New Deal and Welfare to Work, which would see active labour

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market interventions pursued for a range of people facing disadvantage in the labour market including disabled people.

The outline of for the Labour Party’s New Deal for Disabled People (NDDP) was announced

by Gordon Brown, Chancellor of the Exchequer, in his budget statement on the 2nd July 1997: “No one in our society who wants to do some work should be excluded from the right to work because of disability or incapacity. So as a final element of our Welfare to Work strategy we shall bring forward proposals to help those who are disabled or on incapacity benefit, and who want training or work. To fund that programme I have set aside £200million from the windfall fund” (Hansard).

Whilst the scheme was viewed generally in favourable terms, supporters of disability rights criticised the programme for its limitations and lack of funding to provide sufficient incentives for both disabled people and employers. The NDDP was criticised by the Work and Pensions Committee and their 2003 report, Employment for All, for the level of funding which they felt was significantly under resourced to meet the need of more than a quarter million unemployed disabled people.

Evidence of the impact of NDDP on employment participation rates for disabled people is considered by many to be inconclusive. Research undertaken on the programme found evidence that DEAs prioritised those nearest the labour market who could move into work with little or no additional support and the limited financial resources available to the employment advisers compounded this issue (DWP Research Paper 05/61).

NDDP was, however, generally regarded in positive terms by disabled participants and the DEAs who supported them and evidence suggests that this helped support the achievement of what are often referred to as ‘softer outcomes’ which include things like improved levels of motivation and confidence, less social isolation and active job search.

4.3

Work Programme& Universal Credit

The Work Programme was introduced by the current Government in 2011 and, along with the recently introduced Universal Credit, is the key policy driver for welfare reform in the UK.

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The programme was designed to streamline the number of government programmes and offer support for the individual needs of unemployed people. The Work Programme has a number of Prime Contractors, selected through competitive procurement, that deliver the service either directly or through supply chain arrangements which include organisations drawn from the Voluntary, Community and Social Enterprise sectors. The government encouraged Prime Contractors to develop diverse supply chains that had the skills and expertise to work with the most disadvantaged in the labour market. Unlike previous employment programmes the Work Programme encouraged providers to have a ‘black box’ approach to delivering service solutions and to be ‘innovators’.

The Work Programme has generally received negative commentary; not least for aspects of the programme that have been found to be ethically questionable. Some critics of the programme have criticised the “workfare” aspect of the programme whereby participants have been required to undertake unpaid work experience in order to retain benefits. The payment structure for providers has also been considered as problematic as a significant element of the contract’s value is based on a payment by results element, whereby providers are only paid once a participant moves into and retains employment for specified periods.

Work Programme providers are open to the charge of cherry picking; choosing to focus on those people nearest the labour market. Whilst the payment mechanism recognises the differences between different categories of work programme participants, by allocating different payment groups, it has done little to change the behaviours of those working in frontline positions and who are responsible for delivering on what are often challenging performance targets.

Disabled people have fared particularly poorly when compared to other Work Programme participants. On 3rd January 2014 the DWP published the then latest work programme statistics claiming that more than 500 disabled people a week were being supported into work or training. Disability Rights UK usefully put these figures into context: “This claim needs to be viewed in context with the full official statistics. These show that up to end of June 2013 1.31 million have been referred onto the work programme. Of those 14.7%

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of referrals have achieved a ‘job outcome payment’ of which 3.19% are considered to be disabled.”

The introduction of Universal Credit, alongside the Work Programme, was a key economic priorities of the government that was, in part, to reduce government spending on Welfare but to also incentivise access to employment. Following the level of negative criticism of its welfare reform programmes the government took some action to help address widespread concerns.

One of these actions is an increase in the budget for discretionary housing payments (DHP) with the aim of preventing hardship for vulnerable groups. However, these payments have in practice not fulfilled the government’s intentions with disability rights groups criticising the government for putting inadequate funding and safeguards in place for the disabled.

In a report in the Guardian (19/12/13) Patrick Butler noted that the Government’s own figures showed that 420,000 disabled people were affected by the Universal Credit and that one third of disabled applicants for DHP had been turned down.

4.4

Work Capability Assessment or “Fit for Work Test”

The Work Capability Assessment (WCA), often referred to as the Fit for Work Test, is the test used by the DWP to determine whether disabled welfare claimants are entitled to Employment and Support Allowance.

The tests were introduced under the previous Labour administration in 2007.The current government however, extended the scope of WCA in 2011. The Government and the DWP promote WCA as means of improving the employment of disabled people, however, this view is widely challenged by those working in disability rights.

Writing in the Guardian in 2011 Richard Hawkes, Chief Executive of SCOPE (A UK charity who champion the rights of people with cerebral palsy) noted that the principle of trying to narrow the gap in employment for disabled people was right but that the policy and its timing was not.

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“This is a bad time to be pushing people into the jobs market. According to recent government figures the country's two million unemployed people are competing for about 500,000 vacancies. And it's a really bad time to be pushing disabled people into the jobs market. The additional million plus disabled people on Incapacity Benefit who are likely to be found fit for work will be at a massive disadvantage”(Guardian Blog 01/04/11).

A number of issues have dogged and undermined the WCA, not least the high numbers of those tested being found fit for work, but also for the poor treatment of those required to attend with the provider being accused of a lack of empathy and understanding of the needs of the disabled and for a ‘factory approach’ to delivering the assessments. The assessment itself has been criticised for being overly repetitive and impersonal.

The WCA has been criticised not only by the disability rights campaigners but also by the UK government’s own audit and oversight committees. In 2013, the Public Accounts Committee heard that in 2011/12 Atos Healthcare, the agency contracted to deliver WCA by the DWP, was paid £112.4 million to carry out 738,000 assessments. 38% of appeals against the Department for Work and Pensions (DWP) were successful. The Committee declared the WCAs resulted in too many wrong decisions being overturned. Whilst Atos were paid to make the assessments, the Committee commented that it is the government who pays for the tribunal appeals; with £500 million being the cost to the taxpayer for these appeals. The Committee concluded that: “There is no evidence that the Department was applying sufficient rigour or challenge to Atos given the vulnerability of many of its clients, the size of the contracts and its role as a near monopoly supplier. We are concerned that the profitability of the contract may be disproportionate to the limited risks which the contractor bears." (BBC News 09/02/2013).

4.5

Disability Working Allowance

An important development in disability employment policy was the introduction of Disability Working Allowance (DWA) in April 1992. This was a benefit aimed at encouraging disabled people into work by topping up low earnings and was specifically aimed at helping those on invalidity benefit and disability allowance to take up low-paid employment. Its introduction

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reflected the belief that improving incentives would encourage those at the margin to engage in increased economic activity.

The benefit was considered necessary because of evidence of disincentives to work caused by low pay and relatively high disability benefits. Prior to the introduction of the DWA, the social security system created disincentives for disabled people to enter work in two ways. First, there was little possibility of building on partial capacity for work via the benefits system.

Secondly, disabled people were unable to experiment and test their capacity for work without losing entitlement to long-term benefits.

“Why should I work; where’s the motivation? I get £19,000 each year in state benefits. I have a degree but some days I can hardly get out of bed. Who’s going to pay me that sort of money?(Comment by a disabled person).

The structure of DWA could be contrasted with a partial capacity benefit which restricts hours or earnings to reflect a person's work capacity but does away with the need for a means-test limit. Furthermore, detailed research commissioned by the Department of Social Security has also pointed to the limits of this supply- side response. It was estimated that 50,000 would claim DWA but, by 1994, that number was less than a tenth of the original estimate. The DWA was replaced by Working Family Tax Credits in 1999.

4.6

Employment Rehabilitation Centres

Employment Rehabilitation Centres (ERCs) were established in 1943 and by 1978 there were 27 centres. They were criticised for focusing on rehabilitation for manual or lower skilled workers which perpetuated the occupational pattern of disabled people (Lonsdale, 1986).

Increasingly the centres came to serve high proportions of clients who had been out of work for a long period, including non-disabled people. By the end of 1992, all ERCs had been closed.

4.7

Supported Employment

Supported employment is an evidence-based and personalised approach to support people with significant disabilities into real jobs, where they can fulfil their employment aspirations, and achieve social and economic inclusion.

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Supported employment aims to achieve the following outcomes: •

Real jobs where people have the opportunity to earn equitable wages and other employment related benefits.

•

The development of new skills.

•

Social and economic inclusion.

•

Promotion of self-determination, choice and independence.

•

Enhanced self-esteem.

•

Increased quality of life where people are treated fairly and with respect.

The overarching guiding principle of supported employment is that it is designed to support individuals who do not necessarily meet traditional criteria for ‘job readiness’ or ‘employability’. Fundamental to supported employment is the belief that everyone can work, with the right job and the right support. Supported employment agencies are encouraged to offer a nil rejection policy, as the overarching principle is that everyone should have the opportunity to work and contribute to society.

People from the age of 14 upwards can benefit from supported employment. Its aim is to support smooth and seamless transitions from education into employment and, if required, in employment on an ongoing basis. Support can be provided in whole or in part by schools, further education providers, Adult and Community Learning, Careers Services, welfare-towork providers, Jobcentre Plus providers, family carers, day services and community supports.

The people who provide support tend to have a variety of job titles such as job coaches, employment advisers, employment consultants and employment support officers. Jobcentre Plus staff and Disability Employment Advisors are often a key referral route into supported employment. It is important however, that everyone involved in providing supported employment is appropriately trained to understand and implement the evidence-based approach set out in these guidelines. There need to be clear protocols in place, to ensure that all information from the supported employment process follows the person (as they will be leading the process), regardless of who provides the support.

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4.8

Sheltered Employment

The main aim of sheltered employment is to improve the lives of disabled people and those with complex needs through the power of work and by creating real job opportunities. The main deliverer of sheltered employment in the UK is Remploy. Remploy was created in 1945 to deal with disabled ex-servicemen. They currently have 64 centres throughout the UK and their organisation was predicated on the belief that everyone has something to offer. In this respect, they focus on finding a disabled worker’s strengths and matching them to proper jobs with carefully chosen employers who help them achieve.

Remploy’s stated aims are in building careers, not simply filling short-term roles, by using a number of ways to help people prepare and get into work and continuing to help clients with long-term support and advice. They currently work with over 2500 employers, from global corporations to small business owners, with a belief that these partnerships continue to develop a broader and deeper understanding of disabled people’s needs and allow businesses to enjoy new social and economic value. They claim to have helped well over 100,000 people get a real job since 2010.

“I really don’t know what I would have done without Remploy. I hadn’t worked for three years before I got the job here. I’ve been here now for eight years. My mates are all here. I work that machine over there (points). If they closed this place down, I really don’t know what I’d do”(quote from a Remploy employee).

In 2011, Remploy factories employed around 2800 disabled people at an annual cost of £63m (an average of about £22,700 per person). Although workers, and the trade unions supporting them, were positive about the opportunities Remploy offered them, a number of disabled peoples’ organisations and charities argued that subsidised factories making significant losses was not the model for the 21st Century and that government funding should be invested in effective support for individuals (Sayce 2011).

On 7 April 2015, 70 years after it was formed, Remploy left government ownership in a joint venture between MAXIMUS, an international company providing health and employment services on three continents. Remploy believes that freedom from government control means

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they now have scope to expand, move into new markets, borrow to grow and pursue international opportunities. They believe that MAXIMUS will bring commercial knowledge and expertise to the joint venture and works with Remploy to build on its existing success.

4.9

Access to Work

Access to Work is a specialist disability service delivered by Jobcentre Plus. It offers practical advice and support to people with disabilities. Advice and support is available to all eligible clients whether they are working, self-employed or looking for employment. It is provided where someone needs support or adaptations beyond the reasonable adjustments which employers are legally obliged to make under the Equality Act. To be eligible for Access to Work, a person must: •

Have a disability or health condition that has a long-term, substantial effect on their ability to carry out their job.

•

Be over the age of 16.

•

Normally live and work in the UK.

•

Be in, or about to start, paid employment (including self-employment).

•

Not claiming any other Department of Work and Pensions Incapacity Benefits or Employment Support Allowances once they are in work.

Access to Work provides a grant towards the cost of the support, which could include: •

Special aids or equipment or modifications to existing equipment.

•

Travel to, and in, work.

•

Communication support at interviews (e.g. signers for the deaf).

•

Mental health support workers.

Access to Work will consider contributing 100% of the costs of support for self-employed and newly appointed (less than 6 weeks) workers. For any other applicants, employers will be expected to contribute 20% of the costs. This figure increases for firms employing more than 50 people.

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The stated intent of Access to Work is that it will help firms to recruit a disabled person, retain an employee who develops a disability, demonstrate good employment policies and practices and support employees who have a physical or mental impairment. It is considered to be one of the government’s best kept secrets (Sayce 2011). In 2009/10, it helped 37,300 at an average cost of around £2,600 to the state. If it resulted in only 10% of the people it supported gaining or retaining employment, the savings to the state would have been an impressive £2.5 for every £1 spent.

One criticism of Access to Work is its lack of publicity. It may be through word of mouth that an employer gets to hear about the support available through Access to Work. It also tends to be under-used by small businesses and people suffering from mental health problems or learning disabilities; perversely, the people who would benefit most from the provision.

“I was at business breakfast meeting when I found out about the support my business could get from Access to Work. My office manager who’d been with me for nearly twenty years had a breakdown. I didn’t want to lose her. An adviser from the Mental Health Support Service worked with us both to help us understand the illness and develop a plan to support her back into full-time work. It took time but it was worth it (comment from an employer).

4.10

Work Choice

In October 2010, a specialist employment programme for disabled people who require more help to find and keep a job was introduced. Work Choice is delivered through a contract delivered by Remploy on behalf of the DWP. The programme is voluntary and provides: •

Help finding and getting a job.

•

Help to stay in work

•

Help for those who want to become self-employed

Employers benefit from employing a young person aged 18-24 on the Work Choice programme through a wage incentive and with help towards the wages of a young person that they take on through Work Choice in a job lasting more than 26 weeks.

Whilst Work Choice has been positively received in some quarters it is worth noting that disability rights groups like Disability Rights UK have criticised government programmes for

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being under resourced and poorly targeted. In terms of Work Choice Disability Rights UK note that the payment incentive system for providers makes those with more complex needs less likely to receive and benefit from support.

4.11

Residential Training Colleges

Residential Training Colleges (RTC) providers offer specialist disability employment training provision to people with an impairment/health condition with the most significant barriers to work. The Department for Work and Pensions (DWP) and its predecessors has been using RTC services since the mid-1980.

The origin of the RTC provider network is varied. Some were established for the purpose of rehabilitating disabled war veterans, some were set up as charitable foundations before the Second World War, and others were established as schools for disabled children and subsequently developed into training centres for disabled adults. DWP currently has contracts with 9 RTC providers. The table below lists the RT providers and the type of impairment which they focus on: •

Queen Elizabeth’s Foundation for Disabled People (Pan Impairment)

•

Doncaster College for the Deaf (Hearing Impairment)

•

Finchale Training College (Pan Impairment)

•

Queen Alexandra College (Visual Impairment)

•

Royal National College for the Blind (Visual Impairment)

•

RNIB College (Visual Impairment)

•

Portland College (Pan Impairment)

•

Enham (Pan Impairment)

•

St. Loye’s Foundation (Pan Impairment)

RTC providers are independent organisations and do not fall under the direct control of government. Consequently, colleges have the freedom to develop their services without recourse to government. All of the RTC providers are registered charities or part of a larger parent charity. The courses that the colleges offer vary between providers, but typically offer

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qualifications in anything from massage to fork-lift driving, joinery and accounting. The duration of the courses vary; the average length being 35 weeks.

The funding that DWP provides accounts for a proportion of each RT provider’s overall annual funding. In 2009/10, DWP supported around 840 people in residential training, a very small number compared to the 110,000 disabled people, identified by the Labour Force Survey (LFS), in Further Education. The training led to around 230 job outcomes, of which two thirds were sustained at six months, at a (then) cost of £18 million a year.

Client A is 21 years old and was been diagnosed with Scoliosis, Asthma, Autism, Asperger, ADHD and Depression. She left mainstream secondary school with four GCSEs (grades D and E), six Entry Level 3 passes and the ASDAN award. A lived at home, was isolated socially and had not been able to develop her long-term employability skills. A was referred to a RTC through her DEA to undertake a vocational training course leading to employment as an Accounts Technician. In addition to a full vocational training programme and achieving the AAT Level 2 Certificate in Accounting and the C&G Literacy Level 1 qualification, she learnt how to manage her health and mental health conditions through professional counselling and health support, integrated as part of her customised programme.

A received support in relation to her social and behavioural issues and was able to progress these further in developing her life and living skills through residential attendance. She built on her strengths in addressing her self-confidence and employability skills and undertook a period of work placement with a firm of Accountants in her home area. A has been employed since July 2012 as a full-time Accounts Assistant (Remploy Publicity) Client B is a talented artist and designer but has throughout his life been plagued by debilitating stress and anxiety. He left school with no qualifications and was confined to his house by anxiety attacks. A nine-month residential course at Queen Elizabeth's Foundation changed his prospects dramatically. He studied computer-aided design, and picked up a maths certificate, but critically gained the confidence to deal with his health condition and tackle the demands of the workplace. B is now undertaking a work placement at an automotive design agency, which he hopes will lead to a full-time job. He is convinced of the value of residential

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training. B says that, "Being away from home snaps you out of the world of no hope"(Remploy Publicity) From the experiences of the two case studies, RTCs have an important and continuing role to play in the provision of specialist disability employment training, especially in the use of their holistic approach and intensity of training delivery. Although the training is costly (an average ÂŁ49,000 for each disabled person who finds a job), according to the last review the success rate is high compared to other disability employment schemes: almost four in 10 RTC students are in work within six months.

4.12

Self-Employment

Self-employment is considered important for disabled people because it may offer a more convenient and flexible method of working. It was estimated that in 1994, 12.4 per cent of the workforce are self-employed (Employment Department; 1994), and that proportionally disabled people are more likely to be self-employed than the general population. “At least with self-employment you can't discriminate against yourself, you are in control and that's the first element of empowerment� (comment from a self-employed disabled person).

The Employment Department in the UK has recognised this as an important element of policy for disabled people. To encourage disabled people to pursue self- employment there were a number of specialist schemes which applied to only a small number of workers. Aids and adaption are available to self-employed people through the Access to Work Scheme. It is difficult however to gauge how many disabled people have made use of the mainstream schemes to encourage self-employment such as the Enterprise Allowance and the Business Start-Up Schemes.

4.13

The British Association for Supported Employment

The British Association for Supported Employment (BASE) is the national trade association representing hundreds of agencies involved in securing employment for people with disabilities. The association aims to raise awareness of supported employment, represent the sector on a collective basis, inform members, and encourage best practice.

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BASE believes that Supported Employment has been successfully used for decades as a model for supporting people with significant disabilities to secure and retain paid employment. The BASE model uses a partnership strategy to enable people with disabilities to achieve sustainable long-term employment and businesses to employ valuable workers. Increasingly, supported employment techniques are being used to support other disadvantaged groups such as young people leaving care, ex-offenders and people recovering from drug and alcohol misuse.

BASE services support people with disabilities in employment, working in partnership with employers and all concerned and has at its heart the notion that anyone can be employed if they want paid employment and sufficient support is provided. Their approach is a flexible and continuous process, designed to meet all anticipated needs. The European Union of Supported Employment has produced position papers and guides to the supported employment model.

“Many employers are anxious about employing someone with a significant disability but there’s nothing special about it. Once they’ve tried it out they often become very committed to helping people overcome traditional recruitment and selection barriers. We know that traditional recruitment techniques can be overly rigid and formal interviews seldom result in offers of employment. Employers are increasingly recognising the value of working interviews which allow individuals to demonstrate their skills in the workplace and allow the employer to gather the sort of evidence that a formal interview seeks to capture” (BASE Publicity).

Generally, BASE’s aim is to secure 'employment and training' rather than 'training then employment'. This means that a participant gets a job from the beginning.

“We know that most people learn skills better in situ rather than in artificial environments. By doing this we overcome the "job readiness" obstruction where people can get stuck in permanent training. It also increases people's motivation significantly because they see from the beginning that they are employed”(BASE Publicity).

The overriding aim of BASE is to encourage the social inclusion of the participant within the workplace. They recognise that not all workers will reach the productivity, quality and social

49

standards set by the employer and that not many people stay in the same job for the whole of their working lives. In this respect they argue that, “People with disabilities are no different in having to adapt to changing labour markets and wanting to improve their working lives. Supported employment should encourage the career development of individuals by promoting training opportunities and seeking options for increased responsibility”(BASE Publicity).

4.14

Disability Rights UK

Disability Rights UK was formed in January 2012, through a unification of Disability Alliance, RADAR and the National Centre for Independent Living. Their stated aim is to strengthen the voice of disabled people to create an effective national organisation, led by people with disabilities that will campaign to: •

Achieve independent living in practice.

•

Break the link between disability and poverty.

•

Put disability equality and human rights into practice across society.

The charity provides a range of support including: •

Information about benefits for disabled people.

•

Support and information for disabled students over 16 who are studying, or wish to study, at any level on full-time or part-time education or training courses in England.

•

A free education, training and employment helpline for disabled students.

•

Information about Apprenticeship Projects, which aims to promote more inclusive apprenticeships for disabled people.

•

Work related factsheets and publications.

•

Information for individuals and organisations on various aspects of independent living, including personalisation/self-directed support.

4.15

The Business Case for Employing People with Disabilities

Part 3 of this report highlighted the move from the compliance culture that typified the quota scheme to that of the current-day programme of persuasion and education. In this section, we

50

have highlighted a number of interventions that support the business case for employing people with disabilities. Here are some extracts from what these intervention organisations had to say to employers about the virtue in employing a disabled person: •

Disabled people contribute to success.

•

More than half-a-million disabled workers currently work for successful small businesses.

•

Nine out of ten Small Medium Enterprises (SMEs) believed that disabled employees are just as productive as non-disabled staff.

•

Ensuring that the right people are in the right roles with the right support is the important thing-no making groundless assumptions and, as a result, missing out on talent and support that you as an employer need.

•

Many disabled people can work and do want to work. There are 3.4 million people with a disability or long-term health condition working in the UK. Over 1.3 million disabled people want to join them in working.

•

Many disabled people can work alongside their non-disabled employees without any, or with very little, adjustments being made. Other disabled people may need some adjustments but very usually these are straightforward. Any necessary adjustment usually costs peanuts and many are free.

•

There's help available from Access to Work who will help pay for equipment, travel and other forms of support. The Access to Work grant is up to 100 per cent of the approved costs for someone who is starting a job with you.

•

If you don't employ disabled people, how are you going to meet the needs of one-sixth of your customer base? There are over 11 million disabled people in the UK who could be using your services or being your customers. Having a diverse workforce gives you a chance to meet the needs of a diverse range of customers.

•

Make your service or business more representative of the community and foster a better public image as a trustworthy employer.

•

Approximately 7% (13,960)of graduates currently in Higher Education identified themselves as having either a disability or learning difficulty. Ensure your advertising reaches disabled graduates and help attract the ever-more choosy graduates.

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•

Improve staff morale and loyalty to an employer who is considered representative and inclusive.

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5. Conclusion& Recommendations: What’s Worked and What’s Hasn’t?

This report has been written with the sole intent of finding out what impact government policy over the past 70 years has had and what lessons can be learned in order to recommend changes to existing government policy on the employment/working conditions of people with disabilities.

The extent of the problem in the UK is clear; there are nearly 12 million people in the UK who, according to the definition in the Equality Act, are disabled, of whom over 5 million are of working age. People with disabilities are 40% less likely to be in employment than their able-bodied counterparts.

Preoccupation with an unenforceable quota scheme for over 50 years (1944-1995) did little to enhance the employment prospects of people with disabilities. When the Disability Discrimination Act was introduced in 1995, it was heralded as “ground breaking legislation”.

In an effort to combine the rights of all protected members of society in one piece of legislation, the DDA was subsumed by the Equalities Act in 2010. To many, this was an important piece of legislation, protecting people from forms of discrimination that they were not previously protected from and bringing UK laws more in line with UN conventions and EU laws. To others, definitions were vaguer than under DDA with exemptions that gave employers failing to fulfil their legal requirements loopholes to exploit.In order to fully appreciate what’s worked, what hasn’t worked and what might work in the future, it’s important to review the trends that influence policies and practices.

5.1

The emergence of a dominant welfare‐ to‐ work strategy and a growing emphasis on

economically inactive groups has had an important influence on the shape and content of the UK labour market policy portfolio in recent years. A number of important developments can be noted in recent UK labour market policy. These are particularly apparent in policies targeted at disabled people, not least because disabled people comprise a significant share of the economically inactive working age population in the UK. Firstly, there is an increasing emphasis on supply-side measures. This long‐standing trend is very evident in the case of policies for disabled people and has developed to the point where

53

traditional demand‐side interventions (e.g. job‐creation programmes, recruitment subsidies for employers etc.) feature less within the UK’s overall policy portfolio. This emphasis is premised on the notion that the disadvantage faced by disabled people in the labour market is predominantly the result of barriers on the supply side of the labour market, and that in order to tackle that disadvantage, policy measures need to focus on measures to reduce or remove such barriers.

Secondly, the emphasis on making work pay, which, essentially has reflected a concern with eliminating or reducing the unemployment trap faced by many disabled benefit recipients, for whom the wages available in low‐level employment do not compare sufficiently favourably with benefit levels for them to consider taking the risk of labour market entry. Policies here have involved a complex mixture of reforms to benefit regulations and the introduction or extension of in‐work benefits (or ‘tax credits’ as they are called in the UK).

Thirdly there has been an increased level of activation in the implementation of policies, through a greater degree of compulsion and mandatory participation of workless groups in the various active labour market measures. Most measures targeted at disabled people and other economically inactive groups still retain a voluntary aspect, unlike those targeted at the unemployed, where participation is generally enforced through the use of benefit sanctions for non‐participants. It is clear, nevertheless, that the degree of pressure and compulsion has increased over time. Thus, even in cases where participation in a particular programme remains voluntary, it is increasingly common for it to be compulsory for those in the eligible group at least to participate in interviews with the public employment service (Jobcentre Plus) to discuss the options of programme participation. Similarly, the eligibility criteria for the receipt of incapacity‐related benefits have been progressively tightened, and in 2006 the Department for Work and Pensions replaced incapacity benefit with a new benefit (the Employment Support Allowance) where the rate of benefit, and the degree to which pressure will be exerted on the individual to seek work depended on an assessment of the individual’s capability to work.

Fourthly, a greater degree of individualisation in support packages offered to disabled people through active measures. As with some of the other developments, this is a long‐ standing

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trend, which is not confined to measures for disabled people, but is also found in initiatives targeted at other workless groups. It has been associated with a major shift in the culture of the public employment service and the benefit administration system, which were merged into a single agency (Jobcentre Plus). The frontline staff of Jobcentre Plus are gradually being retrained from roles of benefit administration and policing to a broader ‘personal advisor’ role providing customised support, advice and guidance to the individual job‐seeker.

Finally, a growing involvement of the private training providers and voluntary sectors in the delivery of active training and labour market measures for disabled people. This role has intensified in recent years with the introduction of the work programme. While the public employment service retains a key role in service delivery, in many programmes it does so in partnership (or in competition) with private or voluntary sector agencies. These agencies typically operate under contract to the public employment service, through a performance funding regime, whereby some or all of the payment to the agencies is contingent on achieving certain ‘outputs’, such as job placements. There is a long‐ standing debate in the UK regarding the impact which such funding regimes have on the behaviour of the agencies involved, and whether it encourages a tendency to ‘creaming’, with the financial incentives stimulating the agencies to put the greatest emphasis on the ‘easiest‐to‐place’ (e.g. disabled people with less severe impairments, or with physical rather than mental impairments).

5.2

The existing employment service for people with disabilities is predicated on the belief

that disabled people are capable of using facilities such as Jobpoint and Jobseeker Direct to search for employment opportunities and that DEAs have the skills and knowledge to work effectively with disabled people. Whilst it is certainly not the case that all disabled people lack such ability and that not all DEAs lack the required skills and knowledge, the decision to include disabled people in a mainstream provision is certainly going to marginalise many, if not the majority of disabled people. When the specialist disabled person’s service was first established, DROs were recruited because of a desire to want to work in that field and a comprehensive 7 week training programme confirmed the Employment Service’s commitment to a quality provision.

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“DROs were considered experts within the employment field. I jumped at the chance of being one. I worked as a DRO for nearly 8 years. There were two DROs in our office and two assistant DROs. There was also a senior DRO who covered the region. We had our own little career structure. There was also an area Disablement Advisory Committee (DAC) with some major company and trade union representatives. It was a pretty high profile job (comment from an ex-DRO).

This compares starkly with the current role of the DEA. “We don’t just deal with disabled people. Our brief is much wider than that now. Some of the DEAs in the larger jobcentres may just have a case load of disabled people but I deal with all jobseekers (comment from a DEA).

The number of DROs was reduced significantly in the late 80s as quota regulations were lifted. Once they were free of the quota enforcement role, the remaining DROs adopted more of an employment coach role. They were able to offer a personalised service that was flexible, available when needed, with a rapid focus on job search.

Recommendation 1: The DWP need to consider a reversal in the trend to direct disabled people towards mainstream provisions and DEA staff should be given the level training and status afforded to a proper advisory and guidance role.

5.3

Key features of supported employment, which differentiate it from other services and

make it successful for people with disabilities and multiple barriers to work include: •

A person-centred approach, with the client being at centre of the process, with the support based on the client’s needs and preferences.

•

The goal is competitive open employment: not training or volunteering.

•

In-work support is important once someone gets a job, with the aim of sustaining employment and developing a career for the individual.

•

Collaborative working among support organisations working with the client (e.g. DEA staff, and education, training, social care and/or health professionals) is important.

•

Advice on welfare benefits, and financial planning for employment, are an integral part of the supported employment process.

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It is important to recognise the value of this last point. It is crucial to support a disabled person to find and keep employment by allaying their fears about losing benefits and income once if they find work and maximising the income of those looking for and in work.

Recommendation 2: The principles of supported employment should be developed further by making the DEA service more person-centred and supportive to both disabled people and employers.

5.4

Vocational and personal development training is an important part of the supported

employment process. There were contrasting views about the value of the various provisions for this. Supporters of the residential training approach (through RTCs) indicated the high value it provides for those attending, in terms of the multi-disciplinary input and the opportunity to socialise that it provided. Others cited are the high costs of the provision (nearly ÂŁ80k per job created) and its geographical focus on the south of England and the midlands.

The provision also tends to focus on longer programmes, often well away from the disabled person’s home, which can create dislocation from employment opportunities at home for the individual.

RTCs also tend to operate in silos, often competing for funding from the same pot. Although there are isolated examples of excellence in provision, there is very little evidence of any sharing of expertise and experiences.

Recommendation 3: RTCs should offer a more flexible training provision in terms of range and accessibility. They should explore the possibility of developing regional centres of excellence that share resources and expertise. Alternative funding sources for RTCs should be sought, such as through the Local Enterprise Partnerships (LEPs), the National Health Service (NHS) and in collaboration with further education (FE) colleges and work providers.

5.5

Some people with disabilities find the transition from long-term incapacity into

vocational training or employment to be a daunting prospect. There is often the need for an interim process to prepare the individual to be ready to take up such opportunities. The old programmes of employment rehabilitation or sheltered employment played a useful role in this

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respect. The ERCs in particular offered a comprehensive assessment of abilities, psychological profiling and vocational training. Unfortunately, they were considered too expensive and disappeared from the landscape in the early 90s. The principles however were important and there is a clear need for short-term quality assessments of the abilities and needs of people with disabilities. Sheltered employment facilities, such as Remploy and the Adult Training Centres (ATCs) offered something similar but the provision tended to be long-term with limited transition into paid employment.

Recommendation 4: DWP to be encouraged to develop employment assessment centres and half-way house facilities for people facing multiple barriers to employment who may need extra support in making informed career choices and accessing employment opportunities.

5.6

The government spends around 20 times as much on out-of-work benefits for people

with disabilities as it does on specialist disability employment support. Despite this, the Social Return on Investment (SROI) of programmes, such as Access to Work, demonstrates return of nearly £2.5 for every £1 of government spend. Despite this, Access to Work remains one of the DWPs best kept secrets and has certainly been rationed by its lack of promotion and publicity.

“I used to run a restaurant until I lost my sight. If I’d known about Access to Work, I’d have kept my £40,000”.(Comment from a disabled person).

Experiences like this are often hidden. It is a shocking waste of talent when individuals lose employment for lack of knowledge of available support.

Recommendation 5: The Access to Work programme should be publicised more by promoting best practices and sharing experiences. This could be done through a webbased portal that offers information on the range of support available. Jobcentre Plus DEAs should also be trained to inform employers who may wish to employ or retain a disabled person about the support that is available through Access to Work.

5.7

The introduction of fees for applications to Employment Tribunals in 2003 has reduced

the number of disability claims by 75%. There is an on-going judicial review claim made by

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the public services Trade Union UNISON which is challenging the introduction of fees on the basis that as people with disabilities are likely to be more impoverished than non-disabled people, they are being disadvantaged in exercising their rights to make a claim of being discriminated against under the Equality Act. The difficulties of reconciling anti-discrimination legislation with quota systems have not been rationalised throughout the EU: Anti-discrimination legislation means being treated equally whereas most of the EU quota schemes means being treated unequally.

The UK quota scheme required below quota employers to employ a registered disabled person in preference to a non-disabled applicant. The employer had to therefore discriminate in favour of the disabled person. Anti-discrimination laws, on the other hand, seek equal treatment of disabled and non-disabled applicants. If applicants are equally able to do the job, given appropriate adjustments, there is no scope for discriminating in favour of one or the other.

Recommendation 6: The government should make the employment of disabled people a cross-government objective with joint ministerial responsibility. This should involve all departments (Employment, Health, Education etc.) with responsibilities that impact on employment driving a new strategic approach that works closely with public, private and voluntary sector bodies. Discriminatory laws should therefore be viewed in this context.

5.8

The emphasis on ‘making work pay’, through the Work Programme and Universal

Credits, which, essentially were set up to eliminate the benefit trap faced by many disabled benefit recipients, for whom the wages available in low�level employment did not compare sufficiently favourably with benefit levels for them to consider taking the risk of labour market entry has been criticised by disabled campaigning groups. The main criticisms are that the system is now unwieldy and much needed benefits and support has become difficult to access.

Recommendation 7: The government should make the Work Programme and Universal Credit programmes easier to understand and access.

5.9

Funding the above changes will require a lot of good will on the part of those expected

to foot the bill. The imposition of levies is never popular with those that have to pay them.

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There is however a groundswell of support, being championed by philanthropists such as Bill Gates and Warren Buffet, to encourage businesses to contribute to the well-being of people considered less-fortunate. If this trend continues, the Swedish model of a levy of 1.5% of a company’s total wage bill to be paid to a Working Life Fund that was redistributed for rehabilitation at work and for adjustments to the workplace and working practices to enable disabled people to function effectively would pay for all of the recommendations outlined in this report.

An alternative approach, popular in the US, is the use of contract compliance. This is where businesses tendering to deliver goods or services have to demonstrate that they have policies or practices that promote the recruitment or support for people with protected status, including disabilities. In the US, this is described as delivering maximum effect for minimum intervention. It does however require more than lip service and penalties must be imposed on those employers who promise but fail to deliver. Although some view this as a step backwards towards the era of enforcement, there is a distinct difference between punitive action for failing to meet a legal obligation and punitive action for failing to fulfil promises made.

5.10 •

The factors that are essential in driving this new strategic approach include: An enabling state the empowers individuals with the ability to take up employment opportunities and supports employers to be able to develop talented disabled people and have the resources to ensure they are not disadvantaged in the workplace.

•

Confident and well-informed disabled people who can make choices about the careers that may be suitable for them and the support available to make these choices a reality.

•

Employers who are committed to making sure disabled applicants and employees are given every opportunity to succeed in the workplace.

•

DWP staff who are able to offer a high level of advice and guidance to disabled people on career options and to employers on access to work provisions.

With these enablers in place, this report recommends that there will be the foundations for an effective employment service for people with disabilities through:

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•

An employment, education and health and social care system that will raise the aspirations of disabled people and prepare them for a successful transition into sustainable employment.

•

Increased accessibility into employment through proper assessment of needs and abilities, education and training, work experience and in-work support.

•

Legislation the offers disabled people redress against discrimination.

•

A benefits system that means disabled people are always better off when working.

•

A public sector that leads the way as an exemplar employer of disabled people.

•

Procurement approaches that favour suppliers with policies and practices that support the employment of disabled people.

•

A co-ordinated approach amongst organisations that campaign for the rights of people with disabilities and an end to in-fighting for limited resources.

•

Effective employer engagement that emphasises the business case for employing disabled people and promotes levers to incentivise employers and make it easier for them to employ disabled people.

5.11

This report has distinguished between policies which have a collective aim of

promoting employment for disabled people as a group, and those policies which seek to promote the employment of individual disabled people. We must conclude that UK disability policy is weighted heavily in favour of individually-based solutions to employment, with the personal right not to be discriminated against supported by individual systems of redress.

As well as considering the beneficiaries of policies, we have discussed where responsibility for their implementation lies. In this respect, we have looked at the role that the public, private and voluntary sectors have to play. We have discussed the change in the role of government away from policing and enforcing the law towards one of education and persuasion. What is more, responsibility for ensuring that employers' practices do change is being devolved to employers' organisations and forums on the one hand, and to campaigning groups and disabled individuals with grievances on the other.

In the UK, anti-discrimination legislation stands alone as a disabled person's only legal protection in employment, and there are no legal obligations on employers, other than those

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associated with the employment of particular individuals. As we know of no other countries where anti-discrimination legislation operates in such isolation, we can only guess at any broader effects that such an individually-targeted policy might have.

Anti-discrimination laws may make employers wary of being found guilty and so look to their recruitment and employment practices. But, if such policies are policed only by the individual, there will be less incentive to change. A statutory Code of Practice and introduction of a Disablement Commission may mean practices are overseen. An alternative threat is the damage to an employer's image (and profits) through being branded a “bad” employer, as opposed to a “good” employer who is 'positive about disabled people'.

Change is tough and some recommendations in this report will pose real challenges to individuals and organisations, not to mention the state. It is important to note that change will only happen will the full involvement of all concerned. Without this commitment, people with disabilities will continue to be looked on as a burden to the state and not valued for the contributions they can make to the future prosperity of the country.

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Borsay, A (2004) Disability and Social Policy in Britain Since 1750. Palgrave; Basingstoke.

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Annex1: Authors CV Bob Bates was a Senior Executive Officer in the Department of Employment. He began his career as an Employment Adviser before becoming a Disablement Resettlement Officer (DRO) and then a Disablement Advisory Service (DAS) Manager. In his 10 years in the Disablement Service, Bob counselled over 1000 people with a range of disabilities, trained DROs and helped write policy and practise statements for the service.

Bob worked for nearly 8 years on the government’s Inner City Task Force teams in Wolverhampton and Birmingham before leaving the Civil Service to take up a full-time Senior Lecturing post at Birmingham City University. Bob lectured on Managing Diversity, Equal Opportunities and Management. Since leaving University Lecturing in 2005, Bob has worked as a Project Manager for a Social Housing Provider and Teacher Educator for a Community College.

Bob has an MSC in Public Sector Management, an MA in Education and a PhD in Primary Healthcare Management. In the past three years, he has written a number of reports on the social return on investment of projects working with people with disabilities, ex-service men and women, child carers, offenders and children with learning disabilities.

He has just completed his third book on Learning Theories. His first book on Management Theories was voted 2014 Practical Management Book of the Year, was on WH Smiths best sellers list for nearly a year and has been translated into 12 languages, including Chinese, Korean and Russian.

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Ian Henshaw worked as an Executive Officer in the Department of Employment and has subsequently worked on many projects and initiatives aimed at supporting marginalised groups to improve employability. As Assistant Chief Officer, working as national policy lead for offender employment (community), Ian supported the development of senior managers in Probation Trusts, to improve performance on meeting employment and education targets and income generation. He worked with probation trusts to secure funding and develop practice.

He also led negotiations and prepared the application which saw the National Offender Management Service (NOMS) become a co-financing organisation for the European Social Fund in England. Ian currently works as a freelance consultant and is the Director of Ubique Partnerships Ltd, a social enterprise supporting offenders to gain employment. His recent portfolio of work includes: •

Advising on ESF funding opportunities

•

SROI study on a Veterans employment initiative

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Dissemination of a troubled families employment service

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Monitoring and evaluation of victims services

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Delivering a research project on the use of an evaluation framework

•

Bid development on international Justice programmes

Ian has an MSC in Criminal Justice Management from the University of Birmingham, a Postgraduate Certificate in the Management of European Funded Projects, University of Middlesex, a BA (Hons) 2:1 Government, University of Central England and a Certificate in Employment and Labour Studies, University of Warwick.

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