Anti-discrimination Legislation and Supporting Case Law Research Paper

The UK has a very liberal labor market with minimal legislative interference and no strict administration. To assess the working conditions of disabled people, one should turn to history. One of the first laws passed by the UK was the Employment and Employment of the Disabled Persons Act of 1944. This document introduced a system for registering and registering people with disabilities, provided measures to promote the employment of disabled people in rehabilitation and vocational training programs, and established a quota standard workplaces. According to this act, to ensure the employment of registered persons with disabilities, a specialized Employment Service was created, which monitors vacancies in the labor market that correspond to the capabilities and qualifications of registered persons with disabilities. In addition, a National Advisory Council for the Employment of Persons with Disabilities has been established.

Over time, it became clear that, as in many other countries, the quota system turned out to be ineffective for several reasons: firstly, many enterprises were exempted from the obligation to reserve quotas, and secondly, the vast majority of entrepreneurs were not at all aware of the instructions for mandatory quota. These factors, exacerbated by a lack of resources, ultimately minimized the positive impact of implementing the law. The response to this was the abolition of the quota system and the adoption in 1995 of the Act on Non-Discrimination of the Disabled and a package of additional regulations, in particular, on the education of the disabled. In 2005, a necessary amendment to the Disability Non-Discrimination Act was passed, expanding its scope. It obligated public authorities to promote and ensure the equality of the rights of disabled people compared to all non-disabled workers.

It was a significant step, enshrined in law, to eliminate the difference in working conditions and social protection of persons with disabilities, preventing discrimination. This act served as the basis for developing practical state assistance to the disabled. So, along with it, the state program New Deal for Disabled people – NDDP is now operating¹. The program created a national network of brokers to help people with health problems, and disabilities find permanent employment. By mid-2004, nearly 100,000 people were registered as government brokers in this program². For example, in the employment of persons with disabilities, innovative approaches such as fully paid short probation and temporary part-time work have become widespread. A strong emphasis was placed on an individual approach to each disabled person, so no more than 50 applicants were assigned to each broker. Along with the brokers, another state program called ‘Pathways to work’ had advisors – specially trained social workers, not just volunteers³. Counselors assist their beneficiaries throughout the process of finding and applying for a job and during the working life of disabled people.

The second key element of the NDDP system is the financing of brokers. The state stimulates and encourages the efforts of voluntary assistants for the successful employment of their wards for permanent work and pays them remuneration. The creation in 2002 of a new body, through the merger of the benefits agency and the employment service, was another step towards the rationalization and greater integration of persons with disabilities into labor relations. This new body, Jobcentre Plus, which is dissolved now, works based on an individual approach to the client⁴. It is technically well equipped and is a single point of employment, providing advice and support to all non-disabled people.

Created in 1999, the well-structured Personal Abilities Assessment questionnaire for persons with disabilities was considered an excellent example for many countries of the Council of Europe⁵. However, today, with the adoption of the new Law, it is insufficient to solve many problems and is discriminatory in its way. This standardized system measures the possibility of functional limitations resulting from physical or mental health conditions and disabilities but does not measure the inability to work. It is necessary to include an assessment of measures for the treatment and recovery of people with disabilities that will help them return to their old job, and not just look for a new one, taking into account the disability received.

Current Situation

These actionable pieces of legislation demonstrate that the UK can be a model for the Council of European countries in helping people with disabilities find employment. The development of the economy and the introduction of stricter rules for receiving unemployment benefits has reduced unemployment in the United Kingdom from 10% in 1993 to about 4% today, and disability benefits have increased to 8%⁶. By the way, more people got the opportunity to receive disability benefits without losing their jobs. In the past few years, however, both indicators have stabilized, and in 2005 the total number of recipients of disability benefits fell for the first time in 30 years. The category of people receiving disability benefits has changed over the past 25 years. These are primarily disabled children, women, and, most importantly, people suffering from mental or behavioral health problems. The latter already make up 40% of all benefit recipients, and their share grows.

Mental health problems are a significant barrier to work: less than 20% of people with mental health problems have a permanent job⁷. The overall employment rate for people with disabilities in the United Kingdom is slightly above the global average, both in absolute terms at 45% and relative to people without disabilities. In addition, the employment rate of people with disabilities has increased by 7% over the past eighteen years, which indicates the right direction of reforms in lawmaking⁸. Despite these encouraging employment data, the incomes of people with disabilities are a quarter lower than those of people without disabilities. It partly reflects the low rate of the public disability benefit.

The Equality Act 2010

First, the Law contains new provisions to prevent candidates with disabilities from being screened out for work at the first stage of applying to the office. In the past, some human resources workers asked questions about health or disability at the initial stage of recruitment. In particular, they offered to fill out questionnaires in which the question of disability was directly and unambiguously – now there is no such question in the questionnaire. Applicants with disabilities were not allowed for further interviews, that is, until they could prove their professional suitability, skills, and abilities for work, which was discrimination.

The new provisions aim to ensure the right of persons with disabilities to meaningful negotiations with the employer and the future leader to present all their abilities – education, experience, and desire to work – to perform the necessary work. Thus, the employer does not have the right to ask any questions about the health or disability of candidates until the candidate has been offered a job. However, it should be clarified here that there are certain situations where questions about health or disability can be asked early in the recruitment process, and these cases are specified in the Law. Moreover, they are connected with the primary work function and labor protection to determine whether a person can perform it in certain conditions.

For example, an employee gets a job in a construction company as a builder. During the interview, he is asked if, for health reasons, he can climb and move around scaffolding. This question would be legitimate because it allows establishing that the work of the construction worker is safe for this worker.

Secondly, the Law allows collecting and storing all helpful information on disability and health issues separately, anonymously. This classified information, voluntarily expressed by a disabled person in a job improvement interview, will allow for adjustments in hiring other people with similar health problems. It will allow assessing the applicant’s capabilities and determining what necessary measures can be taken to enable people with disabilities to work more efficiently and comfortably. Nevertheless, the employer has no right to ask questions about how the work itself will be performed until the person is accepted for it.

For example, a deaf person, having been hired, expressed many ideas for improving working conditions. The employer took the necessary measures and entered information about them into the database. This information can help other companies improve working conditions and increase the work efficiency of a person with a disability. Anonymously, this information can serve as a source of further legislative reforms. This information should be kept separate from the job application to minimize the risk that these materials will influence the selection process.

The only reason an employer has the right to ask a health question when applying for a job is national security considerations, which are enshrined in the Human Rights Act 1998. Once the employer has decided that the applicant meets the vacancy’s requirements, he can immediately offer him this position or include the applicant in the list of the best candidates. Moreover, when making a final decision, the employer has no right to discriminate against disabled people.

So, after the employment of a disabled person, the Equality Law does not prohibit asking questions about the health of an employee if they will help to obtain additional benefits for the employee or employer or to improve the workplace of the disabled employee, which will allow him to do his job more accessible and better. Suppose a person believes that the employer has acted illegally by asking questions about health or disability that are not authorized by the Equality and Human Rights Commission, which can use enforcement measures against the employer. It is unnecessary to have a disability to apply to this commission; healthy people can also apply to this organization. However, it cannot be sued Employment Tribunal against an employer simply for asking illegal questions about a disability or medical condition. One can apply to the court only if two conditions are met: questions were asked, and the employer used this information about disability against the candidate: for example, did not hire after he learned about the disability of the candidate. If the employer asked questions that he did not have the right to ask but did not use this information to discriminate against a person because of a disability, that is, after a question about disability, he hired him, then discrimination did not take place, and there are no grounds for filing a claim.

Ways to Improve

By adopting this act, the state has identified one of the priority tasks – to expand the types of activities in which people with disabilities can work and improve the chances of employment of people with mental health problems. In this sense, the adoption of the Law on Equality is still not enough. To improve the position of persons with disabilities in labor relations, as well as to improve and improve the efficiency of the labor market in the UK, further reforms are planned, namely:

• increasing the disability allowance for unemployed, disabled people;
• encouraging people with disabilities who are integrated into the labor market to look for work;
• promotion of medical examinations of non-disabled citizens to detect at an early stage certain diseases that may worsen at a particular workplace and lead to disability.

Analyzing these measures, measures related to the early detection of health problems are considered a significant and promising direction in the development of lawmaking. In other words, it is necessary to speed up measures to identify the state of health of non-disabled citizens. Now in the UK, the so-called sick leave is paid by the employer, and the state authorities remain unaware of the illness or injury of an employee from the very beginning. As a result, there is an increase in cases where, after receiving sickness benefits, workers who are unable to return to work become disabled and automatically start receiving disability benefits if they qualify for benefits. Therefore, a health examination of a seriously ill or injured worker is carried out only a few months later. While covering sickness and disability for the first 28 weeks, Social Security cannot cover all of the employer’s expenses.

Conclusion

Analyzing the current legislation in the UK to improve the employment of people with disabilities and practical steps in this direction, it can be concluded that the Equality Act 2010 combines, harmonizes, and in some respects expands the existing legislation on the equality of the right to work of people with health problems and without those. This Law incorporates the best achievements of lawmaking on the rights of persons with disabilities and social protection. This document is direct evidence of the apparent shifts in British society towards tolerance. The law attempts to make society fairer to such a category of workers as the disabled. It is important to emphasize one unique feature of British legislation – prompt response to new challenges and problems arising in society.

References

Bruce Stafford and others, New Deal for Disabled People (NDDP): first synthesis report (Department for Work and Pensions 2004).

Cheng, Zhiming and others, ‘Working parents, financial insecurity, and childcare: mental health in the time of COVID-19 in the UK.’ (2021) 19 Review of Economics of the Household 123.

Department for Work and Pensions, ‘Jobcentre Plus Pathways to Work Official Statistics October 2011’ Web.

Jane Lewis and others, ‘New Deal for Disabled People: An in-depth study of Job Broker service delivery’ Web.

Office for National Statistics, ‘Unemployment’ Web.

Peter Dwyer and others, ‘Final findings: Disabled people’ (2018) Welfare Conditionality: Sanctions, Support and Behaviour Change.

Sayce, Liz, From psychiatric patient to citizen: Overcoming discrimination and social exclusion (Macmillan International Higher Education 1999).

UK Government, ‘The employment of disabled people 2021’ Web.

Footnotes

1. Jane Lewis and others, ‘New Deal for Disabled People: An in-depth study of Job Broker service delivery’ Web.
2. Bruce Stafford and others, New Deal for Disabled People (NDDP): first synthesis report (Department for Work and Pensions 2004).
3. Department for Work and Pensions, ‘Jobcentre Plus Pathways to Work Official Statistics October 2011’ Web.
4. Peter Dwyer and others, ‘Final findings: Disabled people’ (2018) Welfare Conditionality: Sanctions, Support and Behaviour Change.
5. Sayce, Liz, From psychiatric patient to citizen: Overcoming discrimination and social exclusion (Macmillan International Higher Education 1999).
6. Office for National Statistics, ‘Unemployment’ Web.
7. Cheng, Zhiming and others, ‘Working parents, financial insecurity, and childcare: mental health in the time of COVID-19 in the UK.’ (2021) 19 Review of Economics of the Household 123.
8. UK Government, ‘The employment of disabled people 2021’ Web.