Submission to the Work and Pensions Select Committee Inquiry on the Disability Employment GapFriday 8th January 2021

Introduction

1. The Equality and Human Rights Commission (the Commission) is a statutory body established under the Equality Act 2006. It operates independently to encourage equality and diversity, eliminate unlawful discrimination, and protect and promote human rights. The Commission enforces equality legislation on age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

2. It encourages compliance with the Human Rights Act 1998 and is accredited at UN level as an ‘A status’ National Human Rights Institution in recognition of its independence, powers and performance. As part of this role we are responsible for highlighting issues of concern, inform and guide good practice, engage others in solutions and influence change in employment practice.

3. Work is an important aspect of personal fulfilment, and the right to work and fair conditions at work are fundamental human rights. However, some groups face disproportionate disadvantage and discrimination at work. As such, one of the Commission’s priority aims is that people in Britain have equal access to the labour market and are treated fairly at work.

Executive Summary

4. Disabled people of working age are at a distinct disadvantage in the UK labour market. Not only are they less likely to be economically active, but those who are economically inactive are more likely to be unemployed, and unemployed for longer. Disabled people are more likely to work part-time, to do lower-skilled jobs, and to earn less than other people[footnoteRef:1], key factors which contribute to the disability employment gap (28.6 per cent)[footnoteRef:2], and disability pay gap (12.2 per cent)[footnoteRef:3]. Many disabled people also face an increased cost of living as a result of their disability, and our recent research[footnoteRef:4] found an increase in poverty and material deprivation for disabled people throughout the coronavirus pandemic. [1: EHRC (2020) Recruitment of workers into low-paid occupations and industries: an evidence review] [2: Office for National Statistics (2019) Disability and Employment: 2019] [3: Office for National Statistics (2019) Disability Pay Gaps in the UK: 2018] [4: EHRC (2020) How coronavirus has affected equality and human rights]

5. The pandemic, and subsequent rise in unemployment and underemployment[footnoteRef:5], risks further entrenching these inequalities unless the Government acts quickly to mitigate disproportionate impacts. As the Government begins its economic recovery and ‘Levelling Up’ strategies, it is crucial that it considers the economic, health and wellbeing impacts of the pandemic on disabled people, and works to mitigate disproportionate impacts throughout each stage of policy development, in line with its obligations under section 149 of the Equality Act 2010 (the Public Sector Equality Duty or PSED). [5: EHRC (2020) How coronavirus has affected equality and human rights]

6. Workers’ rights are also protected in a number of legally binding international human rights treaties that the UK has ratified. In particular, the International Covenant on Economic, Social and Cultural Rights (ICESCR) guarantees the right to just and favourable conditions of work, without discrimination, including the right to safe and healthy working conditions[footnoteRef:6]. The UN Convention on the Rights of Persons with Disabilities (CRPD) guarantees the right of disabled people to work on an equal basis with others, and requires reasonable adjustments to be provided in the workplace[footnoteRef:7]. [6: Article 6 of ICESCR protects the right to work, and Article 7 of ICESCR sets out the right to just and favourable conditions of work. This entails in particular the right to fair wages and equal remuneration for work of equal value, and a decent living for workers and their families. It also includes the right to safe and healthy working conditions. Article 2 of ICESCR guarantees these rights without discrimination. ] [7: See Article 27 of CRPD, which also prohibits discrimination against disabled people in recruitment, hiring, employment and career advancement. ]

7. While the Commission acknowledges the efforts of existing Government schemes aiming to increase access to work for disabled people, such as the Voluntary Reporting Framework and Disability Confident Scheme, it is concerned that the Government does not collect robust data on their effectiveness. As the Government looks to develop and implement a National Strategy for Disabled People, it must ensure that the impact of its existing and future policies are continually assessed, in line with PSED obligations, and be prepared to take further action if progress is slow.

Our Recommendations

1. We recommend that the Government:

a. Collects data on the number of employees made redundant disaggregated by protected characteristic, full-time and part-time status, occupation, and industry as part of its wider assessment of the impact of coronavirus to find ways to mitigate any disproportionate impact on different groups; and publishes evidence across all policy areas of its assessment of the impact of coronavirus on disabled workers in line with its obligations under the Public Sector Equality Duty.

b. Publishes a report on the effectiveness and impact of the Disability Confident Scheme to date, and revises the Scheme to reflect key learning and challenges from this evaluation.

c. Evaluates the Voluntary Disability Reporting Framework, and works with the Commission and the ONS to develop standardised classification systems and practical guidance on consistent data collection and reporting for employers, and enhancing where possible, the categories of impairment types so that there is continually improved understanding of the barriers facing disabled people in employment.

d. Introduces mandatory monitoring and reporting on the recruitment, retention and progression of disabled people for employers with over 250 staff by April 2022, including mandatory action planning to address the factors contributing to disability employment and pay gaps.

e. Publishes robust time-bound targets to reduce the disability employment and pay gap as part of its National Strategy for Disabled People, and ensure there is clear ministerial accountability in meeting those targets.

f. Brings the socio-economic duty into force at the earliest opportunity, (and the Welsh Government must meet its commitment to commence the Duty this year) to help ensure that everyone can share equitably in the post-crisis recovery.

g. Takes steps to minimise the ongoing socio-economic impact of the pandemic on disabled people, and ensure that recipients of work related benefits receive adequate support in line with obligations under ICESCR[footnoteRef:8]. This could be done (for example) by increasing the rates of means-tested benefits, tax credits and Universal Credit, and by increasing spending on in-kind public services such as health, social care, education and public housing. [8: ICESCR Article 19 (independent living) Article 28 (adequate standard of living) ]

h. Extends the right to request flexible working from day one in all jobs, unless there is a genuine business reason that means this is not possible. We also believe that employers should offer and advertise all jobs, including the most senior roles, on a flexible and part-time basis unless there is a genuine business reason that means this is not possible.

i. Sets outcomes designed to eliminate structural barriers leading to the under-representation of disabled people and other protected groups in work. This could include the use of positive action measures in access to work schemes to increase representation[footnoteRef:9][footnoteRef:10], providing targeted training and development opportunities for under-represented groups, and encouraging senior level accountability for delivery against strategic commitments to increase workforce diversity. [9: Two forms of positive action are permitted under the Equality Act 2010: general positive action, which might include reserving places for a protected group on training courses or providing mentoring for a particular group to increase their representation at senior levels; and positive action that specifically relates to recruitment and promotion, also known as the ‘tie-break provision’. Here an employer can take an individual’s protected characteristic into account in recruitment or promotion. Employers are often unaware of or lack understanding as to why positive action is necessary in the first place. Knowing more about their workforce will help employers understand where groups may be at a disadvantage or under-represented, and establish a strong evidence base for taking action. ] [10: EHRC (2020) Employers: using positive action to address workplace disadvantage. ]

j. Ensures Jobcentre Plus services use longer term outcome indicators such as improved employment and education outcomes broken down by protected characteristics, rather than numerical indicators to measure work coaches’ success; ensure that this information is used to revise and improve future progression and employment strategies; and supply Job Centre Plus coaches with targeted training and support to ensure they are able to effectively support disabled job seekers.

k. Builds on existing work to consolidate employer information and advice on supporting disabled workers, including an awareness campaign to increase employers’ understanding of their obligations to make workplace adjustments, in line with equality and health and safety legislation. They should also take steps to increase awareness for employees of their right to reasonable adjustments.

l. Legislate to extend the time limits for bringing claims under the Equality Act 2010 at Employment Tribunal to six months, to help alleviate any barriers to accessing justice and ensure that people who have experienced disability discrimination or are wrongfully denied reasonable adjustments can get an effective remedy.

m. Review the National Strategy for Disabled People in light of the challenges facing disabled people in employment, and engage with Deaf and Disabled People’s Organisations, business representative groups, unions and the Commission to identify actions to address future labour market participation challenges.

Progress and impact so far

What progress has been made, especially since 2015, on closing the disability employment gap? How has this progress been made?

2. While the disability employment gap has slightly decreased by 1.2 per cent compared to 2019, progress is slow. Prior to the pandemic, there had been a gradual reduction in the gap between the employment rates of disabled and non-disabled people. However, between April and June 2020, only 53 per cent of disabled people were in employment compared to 81.7 per cent of non-disabled people, an employment gap of 28.6 per cent[footnoteRef:11].TUC analysis also shows a small expansion of the disability employment gap in the first two quarters of 2020[footnoteRef:12], suggesting progress has slowed and potentially regressed during the coronavirus pandemic. [11: Office for National Statistics (2020) AO8: Labour market status of disabled people. House of Commons Library Briefing Paper (August 2020) Disabled people in employment ] [12: TUC (2020) Disability pay and employment gaps]

3. Before the pandemic, we knew that persistent disadvantages were faced by disabled people in many areas of life. Our state of the nation report, ‘Is Britain Fairer? 2018[footnoteRef:13]’, found that prospects for disabled people, as well as some ethnic minorities had worsened in many areas of life. We found poverty to be particularly prevalent among these groups, and that disabled workers were disproportionately likely to be in insecure employment. [13: EHRC (2018) Is Britain Fairer? ]

4. Our recent report ‘How coronavirus has affected equality and human rights’[footnoteRef:14] also identified disabled people, as well as ethnic minorities and young people, as being at a particular risk of unemployment and under employment as a result of the pandemic. A likely recession and increase in unemployment could entrench existing inequalities unless the Government takes steps to mitigate these impacts. [14: EHRC (2020) How coronavirus has affected equality and human rights ]

5. Throughout the pandemic, disabled employees have reported that their employers have failed to provide reasonable adjustments so that they can work effectively. We have heard specific concerns about the time it takes to provide reasonable adjustments such as necessary equipment to allow home working[footnoteRef:15]. In some cases, we know that disabled people have been made redundant, despite Government initiatives such as the furlough scheme, either because employers believe this is in the best interests of their employees, or because they are struggling to meet their obligations to make adjustments under equality or health and safety law. [15: Equality Advice Support Service reports (2020) ]

6. Despite the significant challenges facing employees, there are still some positives. In April 2020, more than 40 per cent of adults in employment reported that they had worked at home at some point during the week[footnoteRef:16] compared to 12 per cent in 2019[footnoteRef:17]. While the number of people working from home may have decreased since April, it still appears to be more common in practice for sectors where it is possible to work from home than before the pandemic, which we hope to see continue. The Commission has long called for flexible working to be the default and for it to be a day one right for workers. We hope that the Government and employers will reflect on the recent necessary shift towards home working and other forms of increased flexibility, and take steps to introduce flexible working as the norm in the future. The expansion of flexible working to meet business need has shown that inclusive workplace practices which reduce disadvantage and benefit employees, also make businesses better able to withstand the challenges posed by crises of this nature. [16: Office for National Statistics (April 2020) Coronavirus and the social impacts on Great Britain] [17: Office for National Statistics (March 2020) Coronavirus and homeworking in the UK labour market 2019]

What is the economic impact of low employment and high economic activity rates for disabled people? Are some disabled people (for example, young disabled people or people with different health conditions) more at risk of unemployment or economic activity than others?

7. ONS data from 2018 shows that disabled employees with a mental health impairment had the largest pay gap at 18.6 per cent, while for those with a physical impairment the pay gap was 9.7 per cent[footnoteRef:18]. Those with other impairments, e.g. progressive illnesses such as cancer, had the narrowest gap at 7.4 per cent. December 2020 data published by NHS Digital also shows that people with learning disabilities had a particularly low employment rates, ranging from 17 per cent of those with a learning disability being in paid employment in the Eastern region to just 5 per cent in the North West[footnoteRef:19]. As with ethnicity, collecting useful and robust data on disability requires nuance and the ability to disaggregate by impairment type, and at different stages of employment, in order to understand the barriers that different groups face. [18: Office for National Statistics (2019) Disability pay gaps in the UK: 2018] [19: NHS Digital (December 2020) Measures from the Adult Social Care Outcomes Framework, England 2019-20 ]

8. Analysis shows that workers with intersectional characteristics may have faced a specific disadvantage during the pandemic. For example, research by Leonard Cheshire found a significant psychological impact of the pandemic on young disabled people. 57 per cent of disabled workers aged 18-24 said they felt the pandemic had affected their ability to work, and 54 per cent said that it had damaged their future earning potential[footnoteRef:20]. Research by the Women’s Budget Group also found that many disabled women had very real concerns about the financial implications of coronavirus, with 34.2 per cent reporting that they had run out of money compared to 24.4 per cent of non-disabled women. Disabled women were also more likely to report that they were spending more time working from home, were struggling to focus and experienced increased stress.[footnoteRef:21] [20: Leonard Cheshire (2020) Disabled people plunged into crisis by Covid employment landscape ] [21: Women’s Budget Group (June 2020) Disabled women and Covid-19]

9. Our 2020 research report ‘Recruitment of workers into low paid occupations and industries’[footnoteRef:22], found that disabled people are more likely to work part-time, to do lower-skilled jobs, and to earn less than other people. Those who are economically inactive are also more likely to be unemployed, and unemployed for longer. There has also been a growing trend of under-employment for workers the pandemic[footnoteRef:23], which we will have a particular impact on low-paid and part-time disabled workers who face increased living costs as a result of their disability. [22: EHRC (2020) Recruitment of workers into low-paid occupations and industries: an evidence review] [23: EHRC (2020) Employers: using positive action to address workplace disadvantage. ]

10. Disabled people experience multiple complex barriers to recruitment and career progression, and barriers have led to occupational segregation. For example, evidence suggests employer attitudes to recruiting disabled people has worsened during the pandemic[footnoteRef:24], and many employees have struggled to receive reasonable adjustments[footnoteRef:25] which may discourage them from applying for new roles where they will have to request adjustments again. [24: Leonard Cheshire (2020) Disabled people plunged into crisis by Covid employment landscape Two in five (42 per cent) of employers said that a barrier to hiring disabled people was supporting them during the pandemic, and 20 per cent said they were less likely to hire a disabled people during a pandemic. ] [25: Unison (2020) Covid 19 and disabled workers – time for a home working revolution? ]

11. Improving disabled people’s access to work is not only a legal obligation under the PSED and CRPD[footnoteRef:26], but it also makes good business sense for employers. Numerous studies have shown that drawing on a broad range of talent leads to better decision-making, policy development and outcomes[footnoteRef:27]. Overall, it can lead to services that are more appropriate to users, and services which are more effective and cost-effective. [26: See Article 27 of CRPD, which prohibits discrimination against disabled people in recruitment, hiring, employment and career advancement. ] [27: World Economic Forum (2019 ) The business case for diversity in the workplace is now overwhelming]

Providing support

Where should responsibility for improving disabled people’s employment rates sit?

12. Under the Public Sector Equality Duty, all government departments and public authorities have a legal obligation to consider and assess the potential impact of their policies on protected characteristic groups as they are developed, monitor their impact during implementation, and stop or adapt them when evidence shows they can lead to unlawful discrimination or disproportionately adverse effects. Public sector employers should also take steps to ensure their internal processes comply with the duty, and proactively support disabled workers.

13. For example, the NHS introduced the Workforce Disability Equality Standard (WDES) in 2019, designed to improve workplace and career experiences for disabled people working, or seeking employment in the NHS[footnoteRef:28]. Data collection was paused in April 2020 due to coronavirus[footnoteRef:29], but has now resumed, and requires NHS trusts to use metrics data to develop and publish action plans to improve progress against indicators of equality for disabled staff. [28: NHS (2019) Workforce Disability Equality Standard ] [29: NHS (2020) NHS Workforce Disability Equality Standard 2020: Technical Guidance ]

14. While it is the responsibility of all government departments to consider the impact of their policies on disabled people, and DWP and BEIS have a specific role in relation to improving access to employment for disabled people, the Commission welcomed the announcement of a National Strategy for Disabled People led by the Cabinet Office. This strategy is a significant opportunity to develop an holistic approach to improving outcomes for disabled people in all areas of life, including employment, living standards, and educational attainment, and ensure a clear oversight mechanism with time-bound targets and clear ministerial accountability.

15. While some employers already collect disability data voluntarily whether independently, part of level three of the Disability Confident Scheme, or part of their PSED obligations if they are a public body, none of this data is consistent or centralised. Without a consistent baseline set by the Government for data collection, it is difficult for employers to take steps to mitigate the complex barriers causing disability employment and pay gaps, and the actions taken by employers as a result will be inconsistent. The ONS has already proposed an ongoing research programme to improve data on disability, including ensuring the appropriate measurement and reporting of disability, improving comparability of official statistics and disaggregating outcomes by disability[footnoteRef:30]. [30: Office for National Statistics (2019) Improving disability data in the UK: 2019]

16. The Government has already committed to considering setting a target for the Disability Employment Gap as part of the upcoming National Strategy for Disabled People[footnoteRef:31]. The Commission welcomes this commitment and is liaising with the Disability Unit to ensure that the development of the national disability strategy is informed by our evidence, analysis and insights of the barriers that disabled people face. [31: PQ HL179 (December 2019) Employment: Disability]

What is the right balance between in and out of work support, and is DWP getting the balance right? What more should the Department look to provide?

17. We know that disabled people are more likely to be unemployed, be in low paid jobs, and to be in poverty than non-disabled people. Nearly half of all individuals in poverty live in a household where someone is disabled, and a quarter of unpaid carers live in poverty[footnoteRef:32]. Even before the pandemic, in-work poverty was rising, despite an increase in employment rates overall. There is evidence that this situation has worsened as a result of the pandemic, and we are aware of concerns that the Government’s measures such as the £20 increase in Universal Credit does not go far enough, and unfairly excludes those on legacy benefits[footnoteRef:33]. [32: Joseph Rowntree Foundation (2019) UK Poverty 2019/20] [33: Joseph Rowntree Foundation (2020) What has driven the rise of in-work poverty? ]

18. As part of the UK Independent Mechanism, we have previously reported concerns that social security reforms introduced by successive UK Governments since 2010 are having a particularly negative, disproportionate and cumulative impact on the right to independent living and an adequate standard of living for disabled people[footnoteRef:34]. We found that after years of cuts to authorities who fund care across the UK, many disabled people who need support to live independently in the community are not getting help, or are only getting the bare minimum. [34: UKIM (2017), ‘Disability Rights in the UK,’ pp. 14-15. Reforms include the closure of the Independent Living Fund (except in Scotland where the Scottish Government has continued to protect eligible users’ awards vie the Scottish Independent Living Fund), the transition from the Disability Living Allowance (DLA) to Personal Independence Payments (PIP), some measures brought about through Universal Credit, and the under-occupation deduction to housing benefit. ]

19. The Government knows that the cost of living for disabled people is higher, as evidenced by policies such as Personal Independence Payment (PIP) and Carer’s Allowance. Yet support in and out of work can be disjointed and insufficient to address the disproportionate outcomes for disabled people.

20. Socio-economic disadvantage also often lies underneath and compounds many of the inequalities evident across the protected characteristics[footnoteRef:35].The crisis is likely to exacerbate these as economic downturns affect people on low incomes or with less accumulated wealth more greatly[footnoteRef:36]. Indeed this was recently noted in a speech by the Minister for Women and Equalities. [35: EHRC (2018) Is Britain Fairer?, which found that in 2015/16 disabled people (36.8 per cent) were nearly three times as likely to experience sever material deprivation as non-disabled people (13.5 per cent). Pakistani (44.3 per cent), Bangladeshi (48.4 per cent) and Black African (44.9 per cent) adults were over twice as likely as White British people (17.2 per cent) to live in poverty. ] [36: Emerging evidence already indicates the crisis is having a bigger impact on people living in the most deprived areas. See, for example, Office for National Statistics (1 May 2020), ‘Deaths involving COVID-19 by local area and socioeconomic deprivation: deaths occurring between 1 March and 17 April 2020’. In the accompanying press release, Nick Stripe, Head of Health Analysis at the ONS said: “People living in more deprived areas have experienced COVID-19 mortality rates more than double those living in less deprived areas.”]

21. The Socio-economic Duty under Part 1 of the Equality Act 2020 provides a framework for public authorities to address these impacts effectively by requiring them to have due regard to reducing the inequalities resulting from socio-economic disadvantage when making strategic decisions.

22. The Socio-economic Duty is not in force in England but has been implemented in Scotland and will come in to force in Wales in 2021. Some public authorities in England have also voluntarily implemented the duty, including Newcastle Council and North of Tyne Combined Authority.

How can DWP better support employers to take on and retain disabled employees, and to help them progress in work?

Data collection and transparency

23. In 2018, DWP launched a Voluntary Reporting Framework (VRF) on Disability for employers which requires/encourages them to [do what?]. There is no requirement for businesses to inform DWP that they are using the VRF, and the Government has stated it does not collect data on the number of businesses and employees using the framework[footnoteRef:37]. As a result, it is not possible to accurately assess how successful the framework has been, or what impact it has had on supporting the recruitment and progression of disabled employees and help close the disability pay gap. [37: PQ HL3219 (April 2020) Employment: Disability]

24. The Commission’s research into disability and ethnicity pay inequality shows that pay gaps experienced by disabled people and ethnic minorities arise largely from the multiple and complex barriers they face accessing and progressing in work.[footnoteRef:38] For example, disabled people or those from an ethnic minority background are more likely to experience discrimination in recruitment, promotion and pay reward decisions. They are also more likely to be in part-time, lower-skilled, and/or lower-paid work, and in jobs with shorter contracts. Disabled people also face barriers staying in and re-entering employment.[footnoteRef:39] This is why we encourage the collection and publication of disability workforce information so that employers can understand the particular challenges facing disabled employees and candidates, and take steps to remove barriers and increase under-representation. [38: EHRC (2018) Measuring and reporting on disability and ethnicity pay gaps] [39: EHRC (2017) Being disabled in Britain ]

25. Further than collecting data on the disability pay gap at difference stages of employment, employers should also report alongside their pay gap a clear narrative explaining the reasons and potential barriers for disabled people in their organisation, time-bound targets, and clear actions they will take to close these gaps.

Flexible Working

26. The Commission has long advocated for flexible working, whether flexible hours, part-time or home-working, as a reasonable adjustment.[footnoteRef:40] Employees currently have the right to request flexible working after 26 weeks of employment, but an online survey of adults in 2019 by the TUC found that nearly a third of requests for flexible working are being turned down, and that flexible working is not available to many workers (58%), particularly those in lower paid jobs (64%)[footnoteRef:41]. This makes entering the labour market, and securing career progression opportunities difficult for some workers, who may struggle to find suitable, flexible employment, or be concerned about moving from a secure role with an agreed flexible working arrangement, to a newer role without the guarantee of flexibility. [40: EHRC https://www.equalityhumanrights.com/en/multipage-guide/reasonable-adjustments-practice ] [41: TUC (2019) One in three flexible working requests turned down, TUC poll reveals. ]

27. However, the pandemic has driven many employers to implement flexible or home working practices overnight, demonstrating that it is both possible, and beneficial to employers and employees. We hope to see this practice continue as the crisis draws to a close as flexible working enables many people to participate in the labour market, particularly those with caring responsibilities[footnoteRef:42], and disabled people[footnoteRef:43], leading to greater efficiency, reducing stress and increasing employees’ motivation and commitment. Recent reports indicate though that many employees are worried their employer will revert to previous inflexible working practices[footnoteRef:44]. [42: Nearly three in five parents (58%) in the Working Families’ 2019 Modern Families Index reported having a flexible and family-friendly employer would make them more likely to stay. Over half (55%) said it would make them more motivated and productive. ] [43: Leonard Cheshire (2019) Disabled workers are being failed by employers ] [44: Personnel Today (April 2020) Half of workers expect remote working reversal after Covid-19]

28. ONS analysis from July 2020 also shows that employees in higher paid jobs are more likely to be able to work from home[footnoteRef:45]. As already set out, evidence shows that disabled people are more likely to be in low-paid roles, and therefore many may not have benefitted from the shift to home working during the pandemic. Making flexible working the default, at all levels, and bringing it in as a day one right, unless there are genuine business reasons why that can’t happen, would increase employment and progression opportunities for all employees, particularly disabled workers and those with caring responsibilities. [45: Office for National Statistics (July 2020) Which jobs can be done from home? ]

29. We will be reiterating our flexible working recommendations to the Department for Business, Energy and Industrial Strategy in our response to their anticipated consultation on flexible working next year.

Positive action and training opportunities

30. In 2019, the Commission published a report exploring positive action as a tool to address under-representation in apprenticeships[footnoteRef:46]. We found that while there were a number of examples of positive action used in relation to gender, there were far fewer to help encourage disabled people and ethnic minorities into work. Employers reported that a major barrier to using positive action was clarity on the boundaries between positive action compared to positive discrimination, lack of understanding of the tie-break provision meaning employers fear legal liability and straying into ‘reverse discrimination’ and that more effective promotion of positive action was necessary to encourage its wider use. [46: EHRC (2019) Exploring positive action as a tool to address under-representation in apprenticeships]

31. The Government has already identified some groups that have been impacted by coronavirus, and taken steps to support their access to work. The Kickstart Scheme for example, was launched to provide funding to create new job placements for 16 to 24 year olds on Universal Credit who are at risk of long term unemployment, however the Government has not published information on how it will encourage and support young disabled people on the scheme.

How effective is the Disability Confident Scheme?

32. While the Government publishes statistics on how many employers are signed up to the Disability Confident Scheme, they have said it is not possible to accurately estimate the total workforce employed by Disability Confident employers[footnoteRef:47]. [47: PQ HL167 (January 2020) Employment: Disability ]

33. In 2018, DWP published a survey of 600 employers who had signed up to the Disability Confident Scheme with the aim of understanding the effect that the Scheme had on employer recruitment and retention attitudes and practices towards disabled people[footnoteRef:48]. Only half of the employers surveyed had employed a disabled person since joining the scheme, and the most common recruitment activities undertaken as a result of joining the scheme were promoting being Disability Confident internally (68 per cent) and externally (62 per cent), followed by ensuring staff involved in recruitment processes had appropriate disability equality awareness at just 39 per cent. The impact of this scheme should be evaluated and steps taken to improve it where required. [48: DWP (2018) Disability Confident Scheme: Summary findings from a survey of participating employers ]

What improvement should DWP make to the support it offers to unemployed disabled people via Jobcentre Plus?

34. As a public body, Jobcentre Plus must ensure that its strategies on work progression are informed by equality considerations so that work coaches tailor their advice to address the specific needs of protected characteristic groups defined by the Equality Act.

35. We welcomed the Government announcement that the number of job centre coaches will be doubled to support people’s access to work, but concerns remain that advice will be generic and insufficient compared to the specific and tailored advice that disabled job seekers need[footnoteRef:49]. Research by the Young Women’s Trust[footnoteRef:50] found that job centres were failing young women, to use a comparable example, and called for job seekers to be given personalised and flexible support. Job coaches should be given targeted training on the barriers disadvantaged groups face, so they can effectively support them into work. [49: Disability Rights UK (July 2020) Government set to double the number of work coaches in jobcentres by March 2021] [50: Young Women’s Trust (2018) Working well? Young people’s experiences of Jobcentre services]

36. Alongside Jobcentre plus, the Government launched the Work and Health Programme to support disabled job seekers in 2017, replacing previous Work Programme and Work Choice schemes[footnoteRef:51]. The Government has reported that the programme will support 275,000 people over 5 years, including 220,000 disabled people[footnoteRef:52]. However until November 2019, there had been almost 150,000 referrals to the programme, with only 10,000 job outcomes[footnoteRef:53]. Data up until August 2020 also shows that 8 out of 10 disabled claimants had not achieved a job outcome[footnoteRef:54]. An evaluation report of the programme in London, funded by the European Social Fund, found that inconsistent support is offered to customers, and that further training for work coaches or a content guide for initial conversations would be useful to improve the service[footnoteRef:55]. [51: House of Commons Library (June 2020) Briefing Paper: Work and Health Programme ] [52: PQ 880, 21 October 2019] [53: DWP, Work and Health Programme statistics to November 2019, February 2020] [54: Disability Rights UK (November 2020) More than 8 out of 10 disabled claimants fail to find work through the DWP Work and Health Programme ] [55: SQW, European Social Fund (March 2020) London Work and Health Programmes Evaluation: Theme A Report ]

Enforcement and next steps

Are “reasonable adjustments” for disabled people consistently applied? How might enforcement be improved?

37. Employees with a long-term impairment have legal protection against discrimination under the Equality Act 2010, including the right for reasonable adjustments to be made in the workplace. The Act defines a long-term impairment as one that has a substantial impact on an individual’s life and has lasted at least 12 months, or is likely to recur and have a continuing effect on the individual after it has ceased[footnoteRef:56]. This definition legally safeguards individuals who are substantially effected by health conditions in work, including fluctuating health conditions. Accompanying guidance is already in place to outline how employers should make reasonable adjustments in these cases, to prevent discrimination[footnoteRef:57]. [56: Equality Act (2010)] [57: Equality Act Guidance (2010) ]

38. The EHRC was not set up to enforce every potential breach of the Equality Act, but to use our enforcement powers strategically to protect people against serious and systemic abuses of their rights, and to use our litigation powers to clarify and enhance the existing legal framework. While we don’t have the capacity for wholescale enforcement of the Reasonable Adjustments Duty, we have a range of guidance and resources for employers to ensure they are able to comply with the duty[footnoteRef:58]. We also work closely with partners to identify gaps in our offer, and consistently revise and update it in line developing case law. Most recently, we published a suite of guidance[footnoteRef:59] for employers on non-discriminatory decision-making in the context of coronavirus, including specific guidance on reasonable adjustments during the pandemic[footnoteRef:60]. [58: EHRC In employment: Workplace adjustments] [59: EHRC (2020) Coronavirus (COVID-19) guidance for employers] [60: EHRC (2020) Coronavirus (COVID-19) guidance for employers: Reasonable adjustments for employees]

39. A survey of worker’s experiences in 2019 by Unison found that 67 per cent of workers who requested adjustments had some or all of the refused, and that employers frequently did not respond to requests[footnoteRef:61]. Our quantitative analysis on barriers to employment and unfair treatment at work[footnoteRef:62] identified a range of employer concerns in relation to employing disabled people, These included concerns over the implications of making workplace adjustments; confusion over legislation; and negative perceptions of legislation[footnoteRef:63]. Increasing awareness and understanding of legislation for employers is therefore key. [61: Let’s be reasonable (2019) Unison ] [62: Barriers to employment and unfair treatment at work: quantitative analysis of disabled people’s experiences. (2013) The Equality and Human Rights Commission. ] [63: Barriers to employment and unfair treatment at work: quantitative analysis of disabled people’s experiences. (2013) The Equality and Human Rights Commission; p12. ]

40. Research conducted by the TUC also suggests that ill-health related disadvantage in the workplace is often due to low awareness of legislation, rather than a lack of legal protection for employees[footnoteRef:64]. Many people may not be aware that they are eligible to receive workplace adjustments under this legislation, or that they are required to provide them. [64: “You don’t look disabled’: supporting members with invisible impairments. (2015) TUC. ]

41. Currently, employees who want to challenge decisions relating to reasonable adjustments have to use the employment tribunal system. However, the time limits for bringing claims under the Equality Act 2010[footnoteRef:65] may prevent some people with protected characteristics from getting access to justice, especially during the pandemic[footnoteRef:66]. The lack of support through the process and the time limit to bring a claim act as barriers to this justice, and will likely have an even greater impact during this challenging period. The Government should increase support for employees within the current tribunal process by strengthening legal aid provisions for discrimination cases, and extending the time limit in which claims can be brought. [65: Six months for bringing non-employment claims (Section 118 of the Equality Act 2010) and three months for both employment claims (Section 123 of the Act) and judicial review (See Ministry of Justice (2020), Civil Procedure Rules, Part 54, Judicial Review and Statutory Review) ] [66: The Presidents of the Employment Tribunals have already recognised that ‘the pandemic may have an impact on when and how individuals can take legal advice about claims’, acknowledging it ‘has no power to change those time limits‘ and that this is a decision for Parliament. See Tribunals Judiciary (2020), The Employment Tribunals in England and Wales and in Scotland, FAQs arising from the Covid-19 pandemic, question 18 ]

42. The Commission also considers that the three month limit is insufficient for bringing an Equality Act claim to an Employment Tribunal, especially in the context of coronavirus and the subsequent disruption to businesses. Evidence from our research into sexual harassment in the workplace found that for many people, three months does not give sufficient time to recover from the situation, consider what has happened to them; make a decision to pursue the claim, seek legal advice and start the legal process[footnoteRef:67]. Women bringing pregnancy and maternity discrimination claims also experience similar challenges[footnoteRef:68]. Disabled people may also need further reasonable adjustments at this time, for example if they need to meet with representatives in person rather than via technology, and time should be built into the process to make this possible. Given the Government closure of many businesses, it is also likely that many cases have been halted, and so the employment tribunal system faces a significant increase in cases with potentially reduced resources. [67: EHRC (2018) Turning the tables: Ending sexual harassment in the workplace ] [68: The Commission’s joint research with BIS found that while 77% of mothers had a negative or potentially discriminatory experience during pregnancy, maternity leave or on return to work, only 1% brought their claim to tribunal and that in addition to the introduction of tribunal fees, the requirement to bring a claim within three months of the discrimination happening has also been identified as a major barrier. EHRC/BIS (2016) Pregnancy and maternity – related discrimination and disadvantage: the experience of mothers ]

What would you hope to see in the Government’s National Strategy for Disabled People?

43. The Commission welcomed the Government announcement of a National Strategy for Disabled people, and agree that it needs to consider multiple aspects of life for disabled people, and policies to address the complex barriers they face.

44. In addition to the recommendations we have already set out in relation to employment, data collection, flexible working and the PSED, we would also like to see progress on areas such as education, transport, housing and reducing the use of detention and restraint in education and healthcare settings, in line with our other priority areas. We intend to publish comprehensive information on our recommendations across all of these areas early in 2021, and will share it with the Committee once published. Please contact us if you would like more information regarding any of these areas in the meantime, and we will be happy to provide more detail.

Further information

The Equality and Human Rights Commission is a statutory body established under the Equality Act 2006. Find out more about the Commission’s work on our website.

For more information, please contact:

Kelli Jones

Email: Kelli.Jones@equalityhumanrights.com

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