Examination of Witnesses (Questions 100-119)
MR RUPERT
HARWOOD, MR
PETER PURTON
AND MR
JAMES SANDBACH
2 FEBRUARY 2009
Q100 John Howell: I have got a hundred
more questions on that area but let me move you on to my last
group of questions which is about procurement as a lever for securing
equality outcomes. Is it realistic to see that as a lever for
doing that or is it always going to be a tick box exercise that
favours big organisations?
Mr Purton: Our view is it has
not even been a tick box exercise over the last few years. The
guidance that has been issued is extremely conservative in its
interpretation of the law and seems to have been designed in the
past to deter public sector organisations from procuring their
supplies and services from organisations employing disabled people.
I am very, very pleased to say that seems to be changing. I downloaded
a Welsh Assembly announcement of 14 January by the Minister for
Finance and Public Service Delivery, which is a new procurement
scheme directed at supporting employment in Wales which looks
to be exactly the right approach that should be followed. I had
a chance to see the new Office of Government Commerce (OGC) guidelines
this month on procurement for supported factories which is a radical
change from the approach that was adopted before and opens up
possibilities quite considerably. There are plenty of good examples,
the GLA is one of them, where procurement is being used in the
right spirit and with the right approach and in that situation
it can do a great deal to encourage employment for disabled people.
Q101 John Howell: Do you have a different
view from that, or would you largely endorse that?
Mr Sandbach: I would largely endorse
that. Procurement is a tool, but it is not the only tool and we
need to remember that. We need to be a bit clearer about where
in the procurement process these duties are going to kick in.
One of the things that there should be greater clarity on is if,
for example, a public sector purchaser is doing a bidding exercise
and there are two companies or providers that are putting in to
run a particular service, should it just be value for money criteria
they are choosing on or should there be some criteria about which
of these providers will perform better on equality.
Mr Harwood: In the research we
did before, which seems to be relevant to procurement, we got
the impression that DWP was not taking adequate measures to ensure
that its contractors complied with the Equality Duty. Of more
relevance to what we are talking about at this moment, we looked
at the 11 prime contractors for ESA and found that with the exception
of Remploy none of them had conducted any equality impact assessments
and none of them, apart from Remploy again, understood themselves
to be subject to the Disability Equality General Duty despite
the fact that DWP clearly regards them as subject to it. Our big
concern is that unless the definition of functions of a public
nature is made clear in the Equality Act, there is a danger that
as more and more public functions are contracted out the equality
duties will become of ever diminishing practical significance.
That is very relevant to procurement and that is why we think
there needs to be a definition in the Act, such as along the lines
of the Joint Committee on Human Rights' definition in their inquiry
into the meaning of public authority, to make clear to people
such as the contractors that they are subject to that duty.
Q102 John Penrose: I just wanted
to take all three of you back to one of your earliest answers
to the Chairman's question about setting the scene about where
inequality is strongest. I think you gave examples of particular
groups of people who have problems getting access to employment
because of particular issues they are facing. The question I had
coming out of that was what would good look like? If we got all
these problems sorted out presumably still at the end of this
there would be some groups of people, even if you sorted out all
the discrimination with some waving of a magic wand, who would
be under-represented in the workforce because of disadvantage
and others still for whom any adjustments that could be made would
be unreasonable and, therefore, you would not expect them necessarily
to be able to get access to the workplace in such numbers either.
How far can we get by sorting out discrimination before we run
into those other two barriers?
Mr Purton: It is a bit difficult
to answer that briefly, but I will try.
Q103 John Penrose: If there are figures
that would help.
Mr Purton: I have not got any
figures. If we can get anywhere near equalising employment rates
for disabled people by the target date of 2025, which I think
will be pretty much of a miracle, and as an atheist I do not believe
in miracles, then that would give us a judging point, if you like,
for where we would be able to take into account some groups of
people for whom perhaps standard mainstream employment was not
ever going to be an option. In those circumstances I would hope
that by removing the barriers that still continue to exist everywhere
many more disabled people, who cannot be written off as unemployable,
will find fulfilment and reward in access to some form or other
of suitable employment.
Q104 John Howell: Just to be clear,
you said "equalising", equalising employment rates for
disabled people with who?
Mr Purton: With non-disabled people.
Q105 John Howell: So you are assuming
there that—
Mr Purton: 80%.
Q106 John Howell: You are assuming
if you got rid of discrimination they would have the same employment
rates as non-disabled people regardless of the fact that some
adjustments might be unreasonable and there might also be some
degree of disadvantage which they would still be facing.
Mr Purton: There are always going
to be people who for a lot of different reasons, not all of them
associated with disability, are not going to be able to participate
in the employment market, which is why a target of equalising
at around 80%, give or take a few, is not an unreasonable thing
in my view. If the approach is one of removing the barriers then
a lot of the disadvantage that you are talking about in the question
is removed.
Q107 John Penrose: Would James or
Rupert either agree with that or disagree, and in which case how?
Mr Sandbach: You are getting into
a discussion about the relationship between discrimination and
social exclusion and how exactly you define or model that relationship.
Q108 John Penrose: I am just trying
to work out where we stop when we think the job is done. I appreciate
that is a wonderful position to get to, but I want to know what
good would look like because at the moment we are all assuming
it is terrible but there must be some point at which we say, "We
have achieved something". I do not know what point that would
be.
Mr Sandbach: It is about the perception
of a fair workplace and a fair marketplace in which people have
a decent chance in which the odds are not so stacked against people
so they cannot participate at all. That is what we are talking
about when we talk about systemic discrimination. It is overcoming
that kind of systemic discrimination which is what success would
look like.
Q109 John Penrose: I was hoping for
a quantification rather than a qualification. Do you have any
numbers that we should be aiming for?
Mr Harwood: That is a very good
question and it is a question which should be addressed in the
equality duty to some extent. One of the things it talks about
is promoting equality of opportunity but it is not clear what
that means. In particular, does it mean addressing historic disadvantage?
Does it allow more favourable treatment? The danger is that the
courts could decide to interpret that quite narrowly and they
might make something of Parliament's intent in using the term
"equality of opportunity" and not "equality".
That is something which needs to be made clearer because that
is the important question and it may need to be addressed. It
is very difficult to come up with numbers, but it is something
that needs to be addressed in the Bill.
Q110 John Penrose: Can I move you
on to some specific questions about equality in goods, facilities
and services. This question may be applying the Disability Act
more broadly, but do you believe that there should be differential
standards for what is required to achieve equality in goods, facilities
and services from large organisations as opposed to small organisations?
Should we hold them to different higher standards in some cases
than others?
Mr Harwood: This is an area which
as an organisation we have not looked at too much. I do think
there is a strong argument for a private sector equality duty
in relation to employment and goods and services. In relation
to what you have just said, the point about that equality duty
is that you would only need to do what is proportionate, you would
only need to have due regard, so that would mean a smaller organisation
would not have to do as much as a bigger organisation. I noticed
that when they debated the Disability Equality Duty, one of the
things the Government Minister said was, "We want the duty
that will have the biggest impact on disabled people, so we will
apply it to those organisations which have the biggest impact
on disabled people". That could clearly be organisations
like Tesco, for example.
Q111 John Penrose: You used the example
earlier on of the difference between the Sir John Soane's Museum
and the DWP.
Mr Harwood: Yes.
Q112 John Penrose: I suppose the
problem from the employers' point of view, be they public or private
sector, is that if they are a middle-sized company or public organisation
they do not know precisely what level of standard they are supposed
to hit because they are somewhere in the middle, and might find
out they have been aiming too high or too low when it is too late
and they are receiving a rather large damages claim.
Mr Harwood: Absolutely. That is
the problem with due regard, that nobody is quite clear what it
means. People like the EHRC should be able to give guidance on
that and I guess test cases should be able to make that clear
or at least clearer over time.
Q113 John Penrose: Yes, but does
that not still leave you with an inherently very complicated system
where it will be extremely hard for any employer, public or private,
to work out where they sit in the hierarchy and therefore gauge
what standard they are supposed to be achieving?
Mr Harwood: I think that is true.
Also because at the moment—and we think it should do—it
does not require subsequent action, it just requires assessment,
and that does not necessarily mean that much. In the case of a
small or medium sized company, the EHRC could quite easily produce
a tool which allows that organisation to quickly assess its policies,
tells them what they need to look out for and what they should
add and, with relatively little effort, they should end up with
a better set of policies and procedures for meeting the needs
of their customers. It does not have to be onerous and it can
be made clear, I would think.
Q114 John Penrose: Would either James
or Peter want to comment on that?
Mr Sandbach: We have not supported
the clarion call for the duty to be applied and banked away across
the private sector, we do not think it is realistic to expect
every corner shop to be up to the same standard as the larger
corporate employers. But I think there are other policy tools
which it can look at which are not being examined, for example,
tax credits as incentives and other tools like that for reaching
particular equality standards which would be more targeted at
smaller employers.
Mr Purton: I think there is a
distinction. We did actually continue to support the extension
of the duty to the private sector, by the way, to go on the record
to say that again. There clearly is an issue because small and
medium sized employers have those equality duties and obligations
under the DDA to all the people they employ anyway, and the duty
to make reasonable adjustment for them anyway. We do support the
extension in the law of equal provision to goods and services
in equal provision of adjustment duty. The TUC is chiefly concerned
with employment issues obviously rather than goods and services
issues so I would not want to go much beyond that. But I would
support what my colleagues have said, it does not have to be particularly
complicated. We have the word "reasonable" in there
permanently, and we have already had ten years of people trying
to work out what is reasonable or not, and by using the same tools
you have to apply that in the same way. If you can make a business
case, which people have been making for many years, for why smaller
organisations actually profit from making adjustments for potential
disabled customers and service users, then that is a reinforcement
to the mechanism of doing it. If you can make support available
to small and medium organisations for them to make the adjustments
they need to make, that would be another inducement for people
to go down the right road.
Q115 John Penrose: When you say you
would be interested in extending it from the public sector to
the private sector, would you also include the third sector or
not?
Mr Purton: Yes; everybody.
Q116 John Penrose: So not-for-profits,
clubs, societies, everybody would be subject to this?
Mr Purton: That is what we would
like to see, yes, but it would take a different and more proportionate
form to the one which applies to public bodies.
Q117 John Penrose: Rupert or James?
Mr Sandbach: As before, we do
not quite share the same view as the TUC.
Q118 John Penrose: Rupert, would
you extend it to not just businesses and private businesses but
to the third sector as well?
Mr Harwood: Definitely, yes. The
idea was to have the greatest possible impact in terms of reducing
inequality and discrimination so you have to apply it to relevant
organisations. Just as there is more and more contracting out
to the private sector, there is also more and more contracting
out to the voluntary sector, so absolutely they would need to
be included.
Q119 John Penrose: A final question
from me is about enforcement. A number of people and a number
of submissions we have seen have raised the idea of having a dedicated
set of tribunals or ear-marked judges in the court system which
would specialise in this kind of work to make sure there was an
even and rather more predictable and simpler way of accessing
enforcement in this area. Do you have strong views about how that
should work? Peter, your organisation is one of the ones which
does not think this is sensible, so can I start with you?
Mr Purton: After long consultation
with our member unions, we have come to the view we would not
support in effect what would be an extension of the employment
tribunal system becoming a much broader forum for people to take
complaints on goods and services and so on because of the specific
employment expertise those tribunals are meant to have and the
service which is meant to work. We are afraid of losing that.
As you know, we have a trade union side on those employment tribunals
which is relevant to the employment field and clearly would not
be extendable to the broader tribunals that people have been lobbying
for. So we think the answer instead—and I am not a lawyer
or a legal expert—is that clearly measures can be taken
to make access to the existing judicial system easier and cheaper,
more advice available about how to go about pressing a claim,
but crucially I think as well, as we say in our submission, more
effective training in equality legislation for judges. This applies
to employment tribunals as well but at the moment there does seem
to be a gap there in terms of the expertise, there is a very limited
number of expert judges. We do not think having a few expert judges
is the answer because that would narrow the access to the system
even more; let's have broad training for people.
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