Trade unions and the DDA

(ii)Discrimination against a disabled member of the trade organisation:

The DDA Employment Code of Practice elaborates: "Trade organisations should therefore check that they do not discriminate as regards, for example, training facilities, welfare or insurance schemes, invitations to attend events, processing of grievances, assistance to members in their employers' disciplinary or dismissal procedures". (For full text of Code of Practice, see EOR 69.)

These provisions came into force in December 1996. The Act also includes a requirement on trade organisations to make reasonable adjustments where any arrangements, terms or conditions place a disabled person at a substantial disadvantage in comparison with non-disabled persons (s.15). An unjustified failure to comply with this duty amounts to discrimination under the DDA. This duty has, however, not yet been brought into force.

It is clear from the above that trade unions have a number of new duties and responsibilities under the DDA. In addition, unions can use the DDA in representing disabled members who have experienced discrimination and in collective bargaining with employers to seek new agreements covering disability. Eleven major unions provided us with information about the steps they are taking to meet their own responsibilities and to support disabled members in the workplace using the DDA. The unions are: the finance union Bifu; the civil service unions CPSA and PTC (prior to their merger as from 1 January 1998); the communication workers' union, CWU; the general workers' union GMB; the manufacturing, science and finance union, MSF; two teachers' unions, NASUWT and the NUT; the transport and general workers' union TGWU; the public service union, Unison; and the shopworkers' union, Usdaw.

Representation of disabled members

In its guide to the DDA for union negotiators, the TUC says "the most important resource for union officers raising disability issues in collective bargaining will be the union's disabled members ... Union officers will be more likely to get this support if they have ensured that disabled members have equal opportunities of participation in the union."

All the unions we spoke to, with the exception of Usdaw, have a formal structure for representing the views of disabled members and developing policies on disability issues.

Several unions have a national advisory committee on disability. In some unions this is a subcommittee of the equal opportunities committee. In others, including Bifu and PTC, it is an advisory committee to the union's national executive. Unions differ on whether or not membership of the committee is open only to disabled members. While CPSA's committee is open to disabled and non-disabled members, PTC's committee is made up of disabled members only. Unison's national disabled members' committee is comprised of disabled members, with allocated places for lesbian and gay members, black members, women members, and a co-opted place for a deaf person who uses British Sign Language (BSL).

MSF's disability and employment rights national advisory committee is made up of one delegate per region and co-opted members with specialist knowledge to contribute. The committee ensures that at least 50% of its membership are disabled members with at least two being women.

Some unions also have a regional committee structure. For example, MSF has 14 regions, some of which have a disability committee and others an equal opportunities committee. It also encourages branches to set up committees. All 13 of Unison's regions have a disabled members' group, and some of these have set up a disabled members' committee. Some branches in the larger metropolitan areas, such as Birmingham and London, have also set up disabled members' groups.

In addition to a committee structure, some unions have a conference or forum specifically for disabled members. The GMB set up its national disability forum in 1996 with membership open only to disabled members. The role of the forum is to advise the union on disability and to develop disability campaigns. The NUT has held four conferences of disabled members. It discusses issues facing disabled members and puts forward recommendations to be discussed by the union's working party on disability. The working party comprises three members of the national executive committee and four disabled members drawn from those nominated by the regions and the NUT Wales Office. MSF and Unison also hold an annual disabled-members' conference.

Only two unions, MSF and Unison, have a full-time national officer with sole responsibility for disability issues. In the other unions, disability is part of the brief of the national officer responsible for equal opportunities. Ken Orme, MSF's national disability officer, came into post in February 1996. His role has included focusing attention on the implications of the DDA for the union, establishing a helpline for disabled members and a disabled-members' database and raising awareness of the specific needs of disabled members. Unison's full-time post was created in 1985. Gloria Foran, the disability officer, sees her role as implementing union policy on disability issues, working with the disability committee and ensuring that accurate information goes to disabled members.

Monitoring union membership

Without a reliable estimate of the number of their members who are disabled, unions are uncertain to what extent they are equally successful in recruiting disabled as well as non-disabled employees within the sectors they organise.

Several unions pointed to the difficulty of relying on the findings of any monitoring exercise. NASUWT carried out a monitoring exercise of existing members and received only a small response from disabled members. The NUT's application form contains the question "Do you consider yourself disabled?", but has found that only a small number of applicants identify themselves. Other unions also include a monitoring form for new members, but find that the numbers responding to the question on disability are lower than they expect.

According to Phil Madelin, the officer responsible for disability issues at PTC, some disabled members are concerned about the possible crossover of information to employers - if, for example, union information targeted at disabled members goes to a work address. Similarly, Ken Orme at MSF believes that disabled members are afraid of being identifiable to their employers in the current economic climate for fear of being a target for redundancies. Whether or not these fears are justified, it seems as though there may be many union members who do not wish to self-identify. The result is that all unions are operating with an underestimate of the numbers of disabled members.

The value of a monitoring exercise, however, is that it can provide an opportunity to inform disabled members of the union's disability-related services. For example, Bifu's membership application form asks whether the person is disabled and also states: provides extra services for members with disabilities. Would you like more information: Yes/No". This enables the union to indicate the new member's requirements on the membership records and for the member to receive information in the appropriate format.

In addition to a formal monitoring exercise, unions can seek to build up a database of disabled members by contacting them through newsletters and other publications. MSF, for example, regularly encourages members through its publications and leaflets to add their names to the union's database of disabled members. Those who do so - and the union has several hundred on the database - receive all relevant publications as they are produced. PTC also has a disability network of disabled members which functions as a mailing list for union information and the newsletter on disability.

Access provision

The wide-ranging nature of the duty on trade organisations to make reasonable adjustments to accommodate disabled persons who are members of the union or who are seeking membership, means that trade unions need to consider its implications in advance of its coming into force. During the parliamentary process, the Government gave two examples of steps that a trade union might take: the provision of union literature in Braille or taped formats to members with visual impairments; and, where the union is aware that members with hearing disabilities will be affected, the provision of access to signers at union meetings.

In the TUC guide, Trade unions and disability law, disability lawyer Brian Doyle points out that "it is plain that the Act will require trade unions to consider whether any premises or buildings which they occupy are physically accessible to members with disabilities." This involves considering the needs of members with different disabilities such as mobility and visual impairments. But reasonable adjustments need not always involve an alteration to premises: it may be reasonable simply to relocate a meeting to a ground floor room to accommodate a member who is a wheelchair user. "It might be unrealistic to provide a sign language interpreter for a deaf member attending a training seminar, but good written materials, provided well in advance, can greatly assist", according to Doyle.

A trade union's legal duty to make adjustments does not apply unless the trade union knows (or can reasonably be expected to know) that the member or applicant for membership has a disability and is likely to be placed at a substantial disadvantage by any arrangements or physical features of the premises. However, the TUC is urging trade unions to prepare themselves so that they can respond quickly to requests as they arise.

Accessible documents

A key area for trade unions to consider making reasonable adjustments is that of union documentation. In 1996, the TUC's Equal Rights Department produced a resource pack for union officers on accessible documents. The pack stresses that unions have traditionally provided only written information with the result that: "Many members are excluded from information because it has not been provided in accessible formats. Unions which make their documentation accessible to all their members will enable their disabled members to become active shop stewards, health and safety representatives, and to take up other union positions. Unions which make their documents accessible to disabled members will become more representative of their disabled members, and will be able to draw upon the strengths of their disabled members."

The pack provides guidance on producing other formats for disabled members including: clear print and straightforward language; large print; Braille; computer disc; audio tape; BSL video tape; and text subtitled video tape. To identify which format is appropriate, the TUC recommends that unions consult their members and do not assume that they can identify members' needs from a knowledge of their impairments (see box).

A number of unions are taking steps to produce documents in a range of other formats. For example, Bifu's provision includes:

Unison can produce, if requested, all its documents in Braille, audiocassette, large print, disk format, text telephone, and BSL videos with subtitles. For meetings it can provide interpreters, signers, lip speaking, signing within a restricted frame, note taking, speech-to-text translation and induction loops, as well as personal assistants to be in attendance.

MSF's disability officer, Ken Orme, finds that audiotape is the most frequently requested alternative format. The union makes its main journals and disability factsheets available in a variety of accessible formats, and branches and regional committees are all encouraged to follow the national lead. The Yorkshire and Humberside disabilities committee, for example, makes the minutes of its meetings available in large print and other formats on request.

Accessible premises

The TUC guide, Trade unions and disability law, provides a number of examples of best practice with respect to ensuring that any premises or buildings occupied by trade unions are accessible to their members. These include widening doors, fitting double hinges, laying low-density carpet, and adapting the lighting, colour scheme and signage.

Addressing the accessibility of premises is more difficult for some unions than the issue of accessible documents. Many unions have a number of old buildings requiring alterations to provide adequate access to disabled members. A first step is to carry out an access audit to establish exactly what is needed.

Unison has a policy committing it to investigating the level of access in all its premises. All its premises - around 45 to 50 - are being audited by a consultancy run by disabled people. Remedial action is currently being taken as required.

Unions which have moved recently - or are planning to move - into new premises have been able to ensure that the premises meet the necessary standards. CPSA's headquarters, for example, is a relatively new building with good access, while provision in the regional offices varies. It has been waiting for the merger with PTC to carry out access audits of those regional offices which remain. MSF's headquarters is also accessible to those with mobility impairments.

The NASUWT recently made its headquarters, conference hall, committee rooms and accommodation block accessible to people with mobility impairments. The union is in the process of developing a procedure for checking all venues used for conferences, including hotels. It has sent its local associations information on making their meetings accessible.

A checklist for good practice on accessible venues has been issued by the NUT to its divisions and associations. The list covers points such as: whether all buildings and rooms in which union meetings are held are accessible to people with mobility impairments eg, accessible toilets, ramps, lifts, and handrails; and whether venues not owned or controlled by the union are selected with the needs of disabled members taken into consideration.

PTC is currently producing a wide-ranging access guide on how to make conferences accessible and "equality proof them".

DDA guidance

In the past two years both the TUC and individual unions have produced regular briefings on the provisions of the DDA.

TUC

The TUC guidance on the DDA has been prepared by the Equal Rights Department. Disability is defined as an equal opportunities issue, and the TUC's disability policy officer is based in the Equal Rights Department. The officer's role involves preparing briefings for unions on a wide range of issues relating to disability. In the past two years, this has included guidance on: the employment provisions of the DDA; making union documents accessible to disabled members; and the specific issues affecting people with epilepsy (see box for TUC publications).

According to Richard Exell, who was the TUC's disability policy officer until December 1997, the unions' response to these briefings has been very positive, with over 1,000 copies of the Code of Practice already requested.

In addition to these briefings, in 1995 Exell started a weekly Disability update, distributed to around 200 trade unions and disability organisations. Distributed via fax, e-mail and on the website (not hard copy), it provides information on a range of issues, including the DDA and tribunal decisions. It has also functioned as a forum for subscribers to contribute information.

Individual unions

In addition to distributing the TUC guidance, many unions have produced their own briefings for members and negotiators on the DDA.

DDA training

The TUC organises regional briefings for unions on the DDA. In addition, several unions mentioned that they have been organising courses on the DDA for their full-time officers. For example, Bifu has organised training courses for full-time officers and seconded representatives on the DDA. The CWU offers courses for branch secretaries and equality officers on the DDA which involves working through the guidance from the union and the TUC, with examples of the types of cases that may be encountered. The GMB has been running training courses for their regional officers, and specialist training for their legal officers. PTC has provided courses for senior negotiators on the DDA, and is currently running courses for local regional representatives on the DDA.

Complaints under the DDA

Many unions said that it was too early to establish a clear pattern with respect to the types of complaints from members relating to possible claims under the DDA. However, three areas are emerging of particular concern: the definition of disability under the DDA; the issue of reasonable adjustments; and dismissal.

Definition of disability

As Doyle points out in Trade unions and disability law, "the definitions of 'disability' and 'disabled person' are among the most contentious areas of the Act". According to the Act, a person has a disability if he or she has a physical or mental impairment which has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities. The difficulties arise because of the potential for different opinions on the impairments which are covered by this definition.

According to Bifu, a number of employers are dismissing workers' claims for protection under the DDA on the grounds that their impairment does not amount to a disability for the purposes of the Act. The examples encountered by the union include cases involving repetitive strain injuries (RSI), stress, Multiple Sclerosis and ME. Stress was also mentioned by the NASUWT which is in the process of getting legal advice about whether or not it is covered.

The GMB is also receiving queries from members about if they are covered. Some of these cases involve people with back problems.

The T&G has received a number of queries as to whether or not asthma is covered. In response, the union has produced a briefing for members setting out the likely circumstances in which people with asthma might be covered. It points out that asthma can affect mobility, speech and manual dexterity, and "depending on the type of work and working environment, a serious case of asthma could affect the ability to work at all".

Reasonable adjustments

As we have already noted, employers have a duty under the Act to make reasonable adjustments to the physical features of the workplace or to working arrangements so that a disabled person is not placed at a substantial disadvantage in comparison with non-disabled people. This applies at all stages of employment, including recruitment, pay, terms and conditions, training, career development and dismissal.

This duty is, however, subject to a number of factors which determine whether it is reasonable for an employer to make any changes, such as the extent to which it is practicable for the employer to make the change, and the cost of the measure, both financially and in terms of the disruption it will cause.

Several unions expressed concern that employers were not fulfilling this duty to make reasonable adjustments. CPSA has received complaints where managers are alleged to have discriminated against union members by refusing to acknowledge their disability and failing to make reasonable adjustments to the type of work a member is doing. Similarly, the CWU said the complaints concerned the failure of managers to provide equipment quickly enough, or at all, even though in some cases this involved relatively small items of equipment such as a chair. In the union's view, employers are "not up to speed on equipment provision, and not well informed on their duties with respect to reasonable adjustments".

Unison has also received a number of inquiries in this area from people whose access needs have changed with the progress of their disability and who require adjustments. An example is of someone needing to learn Braille and requiring time to learn it but finding that their employer - a local authority - had difficulty acknowledging that this is a reasonable adjustment.

The experience reported from one of the GMB's regions is that most queries from members about the DDA are coming from people already in employment who have a newly diagnosed disability, or whose existing disability progresses, rather than from job applicants. These queries concern access and support in the form of reasonable adjustments in the workplace.

Dismissal

Several unions indicated that disabled members were coming to them with complaints relating to dismissal. For example, Bifu said: "There have been a number of queries where management are questioning a disabled worker's ability to continue in their job, and are looking to sack them on the grounds of incapacity". MSF also mentioned cases where members had been either sacked or threatened with dismissal (see the Alison Schanz case,below).

A related issue of ill-health retirement was raised by the NASUWT. According to the union, some teachers have been complaining that they have been pushed into ill-health retirement on account of their disability, rather than being able to continue their teaching with reasonable adjustments.

In its guidance to local secretaries in September 1997, the union stressed: "In respect of ill-health retirement, members need to be advised in local newsletters to contact union officers for advice if they are considering it, or being forced to consider it. It may be that with 'reasonable adjustments' the member can continue teaching but it will be difficult to argue for adjustments if the member has already started the process of requesting ill-health retirement."

It also warns that risk assessment under health and safety legislation and medical assessments of fitness to teach could be used against members with a disability. The union advises negotiating secretaries to remind employers of the DfEE Circular 13/93 stating that "Disability in itself does not result in a teacher being medically unfit to teach".

The NUT is similarly concerned about the role of medical experts in determining if teachers are deemed "fit to teach". It believes that if there is any doubt about a teacher's capacity to teach "the employer should set up a professional panel on which practising teachers, including disabled teachers, are represented."

Industrial tribunal cases

In the period from 2 December 1996 to the end of October 1997, there have been 924 industrial tribunal applications, according to the latest figures from the Department for Education and Employment. Of these, only nine have been won by applicants; 41 have been lost and 328 withdrawn or settled. Around three-fifths of applications concern dismissal.

In the absence of a Disability Rights Commission to provide advice and assistance to DDA complainants, trade unions have a key role to perform in backing legal action. There have been at least three notable successes in which applicants have been backed by their unions. The highest payment to date was made in a case backed by MSF: £16,000 was paid - in an out-of-court settlement - to a health visitor, Alison Schanz, sacked by Hertfordshire Community Trust following a 10-month sickness absence owing to post-viral chronic fatigue syndrome, known as ME. At the time of her dismissal she was in the process of discussing with her manager a phased return to work. The payment covered loss of earnings and injury to feelings (EOR 75).

The second case is Tarling v Wisdom Toothbrushes Ltd, in which the applicant was backed by the TGWU. Born with a club foot, the applicant had worked as a machinist for Wisdom since 1979. In the mid-1990s her club foot was causing her some pain and discomfort. Her employer sought expert advice from the Employment Service and the Shaw Trust. The Employment Service suggested a special chair, costing around £1,000. However, the employer instead provided her with a series of "ordinary" chairs, none of which met her needs. Throughout this time her performance was deteriorating.

Disciplinary proceedings were begun, which resulted in the applicant's dismissal. She claimed unlawful disability discrimination and unfair dismissal. The tribunal upheld her claim, finding that her employer had discriminated against her by failing to make reasonable adjustments, and awarded compensation of £1,200, all for injury to feelings, and ordered her reinstatement (DCLD 33).

The third, more recent case, was backed by the GMB and involved a care assistant, Francis Calvert, who was dismissed by his employer, Parkview Nursing Home. Calvert had a history of epilepsy which was controlled by medication. The tribunal found that the applicant was unlawfully discriminated against, contrary to the provisions of the DDA, and that the respondent had completely failed to show that the treatment of the applicant was justified. In October 1997, the tribunal awarded the applicant £6,940 (plus interest) in compensation, including £1,000 for aggravated damages (DCLD 34).

All the unions said that they were prepared to back suitable cases, but many said that at present there were no known cases proceeding to an industrial tribunal.

A heightened awareness of the implications of the Act, is leading legal officers, such as George McLean from USDAW, to encourage union officers to be proactive by being aware that there may be a DDA element not immediately evident, in a variety of cases, such as incapacity dismissals. In addition, the DDA could be used to negotiate improvements without necessitating proceeding to an industrial tribunal.

At the TUC, Richard Exell believes that unions are potentially in a strong position to represent their members because they are often better informed on the DDA than many employers. The unions tend to call on their solicitors for legal opinions, many of whom are now well qualified on the issue. But Exell believes there have been many "perverse decisions" resulting from the lack of knowledge or understanding of the legislation of some tribunal members. "It is important that union representatives ensure that applicants have evidence of their impairment and are ready to explain how they are covered by the DDA. They need to be prepared to argue against the employer's defence of justifiable discrimination and be aware of the five tests for reasonable adjustments," he says.

Model agreements

In its guide to the DDA, the TUC includes a model equal opportunities agreement on disability (see box. p.28). Union officers are advised to adapt the agreement to meet their specific needs.

The TUC does not keep information about individual union's collective agreements covering disability. Exell started to do so but found that many of the "agreements" were in fact policies introduced by management without the specific involvement of trade unions. He also found that the policies varied so much that it was difficult to use them for benchmarking good practice.

In addition to following TUC guidance, Exell advises unions to consult the guidelines on good practice from the Employers' Forum on Disability (EFD). Although these guidelines have been designed for employers to adopt, they set out examples of best practice in all areas covered by the DDA. The EFD has published The DDA 1995 - a best practice guide, and a series of factsheets and briefing papers on the DDA.

Some unions have issued their negotiators with a model agreement that is based largely on the TUC model but with some modifications. For example, the GMB's model agreement makes reference in the section on retention to employees who become disabled being offered paid "disability leave". Similarly, the NUT's model agreement refers to teachers who develop impairments being offered paid "disability leave" and continues "the length of such leave would be defined by the length of time taken to make the environment accessible". It also states: "Temporary or fixed-term contracts should not be misused in the employment of disabled teachers."

Provision for disability leave also appears on other unions' negotiating agendas. For example, NASUWT has issued a guide on disability/rehabilitation leave and asked its local negotiators to seek the introduction of disability leave entitlement with employers, whether a local education authority or a governing body. A period of disability leave is seen as a form of "reasonable adjustment" which protects employees who are newly disabled, or whose disability deteriorates, from making a hasty decision to abandon their career, and ensures "their experience and expertise are not lost to the profession", according to the union.

At present, unions can point to few examples of collective agreements which they considered incorporated the provisions in the model agreement. Bifu has circulated its full-time officers seeking updated information on agreements, but concluded that "the employers' response to the new legislation has been minimal - they consider their existing equal opportunity policy which considers the word 'disability' adequate".

Among the few agreements cited by unions was the TGWU's agreement with the Dover Harbour Board which makes clear reference to the requirements of the DDA including making reasonable adjustments. PTC referred to the Civil Service Programme for Action to achieve equality of opportunity in the Civil Service for disabled people, which was reissued in July 1996 following negotiations between the union and the Cabinet Office. Unison mentioned its agreement with Kirklees Metropolitan Council, and the GMB with Glasgow City Council.

TUC guidance for unions

On the DDA

Disability Discrimination Act, Code of Practice, and Guidance, TUC briefing, Equal Rights Department, August 1997.

Trade unions and disability law, prepared for the TUC by Professor Brian J Doyle, Equal Rights Department, June 1997.

Civil rights or a discriminating law? Why disabled people are still campaigning for full civil rights, June 1996.

Accessible documents, a TUC resource pack for union officers, Equal Rights Department, April 1996.

The Disability Discrimination Act, a TUC guide, Equal Rights Department, March 1996.

Other guidance on disability

People with epilepsy and their rights, a TUC guide, Equal Rights Department and British Epilepsy Association, June 1996.

TUC guide to disability leave, 1994.

Trade unions and disabled members, 1993.

Deaf people and their rights, 1993. Produced in association with the Royal National Institute for Deaf People.

Conference facilities for disabled people, 1990.

Extract from Accessible documents, TUC

Identifying members' needs

1.This is the easiest part of an accessible communications policy and strategy to get right - or wrong. The key to making documents accessible to members is to find out what formats they use; the simplest - and most effective - way to find out is to ask.

2.The most important rule is that union officers should not assume that they know what their members' needs are. An officer may know that a member is blind, for instance, and assume that this means that Braille transcriptions are necessary. It would be a costly mistake to discover that the member actually uses audiotape cassettes - a mistake which may also delay the member's access to the information.

3.The way in which members' needs are discovered will vary according to the purpose of the document. A circular to members of a committee can identify the needs of committee members, so that appropriate accessible versions of agendas and minutes can be produced. For one-off meetings, conferences and training events, the registration form can be amended to ask participants/delegates about their access requirements. For instance, the registration forms for the TUC's Forums on Disability Issues ask participants to "indicate whether you have any special access requirements, such as parking, lip speaker, BSL interpretation, large type, tape or Braille documentation".

4.Where a document is intended for a larger group of members, a survey of members' access needs is a useful tool. This is a useful approach at any level of the union - branches will find it as helpful to survey their members' needs as the union nationally. A survey is particularly useful because it can also be used to identify other ways the union can become more accessible to, and representative of, disabled members.

5.Surveys should not list a series of impairments, and ask disabled members to place themselves in one of these categories. This is demeaning, and not very useful - officers can't decide what a member's access needs are from a description of her/his impairment.

6.It is more useful for the survey to ask members to describe how the union is not accessible to them, and how these problems can be overcome. For instance, a survey could ask members:

"Do you have difficulty reading the branch newsletter, the agenda for meetings and other branch documents?

If you do, please indicate an accessible format (such as Braille, large print or tape)."

7.Once a survey of members' access requirements has been carried out, and the information analysed, information provided to the membership as a whole should be provided to disabled members in accessible formats without their having to request it each time. Carrying out a survey and then failing to act upon it will do the union more harm than good.

TUC model equal opportunities agreement on disability

The parties to this agreement are committed to equal opportunities for employees regardless of whether or not they have a physical, mental or sensory impairment. This principle will apply to the operation and implementation of all policies, including those not specified in this agreement.

Recruitment

Retention

Career development

Other matters

An "action plan"

All employees shall be informed of this agreement by the management. As necessary, the parties to this agreement shall consider its operation, and agree revisions to it. Any employee who considers that s/he has suffered, or is suffering, from a failure to implement this policy, or any other discrimination based on her/his impairment may make a complaint which shall be dealt with through the existing grievance procedure.