Freeney Williams Ltd. http://www.freeneywilliams.com The Disability and Equality Agenda e-bulletin – February 2011 For information about how Freeney Williams Ltd can help your organisation achieve the disability and equality agenda please contact: enquiries@freeneywilliams.com Please forward this bulletin to a colleague so they can subscribe. In this month: 1. EU ratifies UN Convention on Rights of People with Disabilities 2. Changes to Access to Work 3. ONS disability survey 4. EHRC guidance on public sector equality duty is published 5. Legal cases 6. Independent Living Fund to close 7. Campaign to boost awareness of sub-titling and audio described films 8. Myths about Incapacity Benefit 1. European Union ratifies UN Convention on Rights of People with Disabilities The European Union has just ratified the United Nations Convention on the Rights of People with Disabilities (CRPD) This is the first human rights treaty to be ratified by the EU as a whole. It had already been signed by all 27 member states and has been ratified by 16. The convention aims to ensure that people with disabilities enjoy their rights on an equal basis with all other citizens. One in six people in the European Union – around 80 million – have a disability that ranges from mild to severe. Over one third of people aged over 75 have disabilities that restrict them to some extent. These numbers are set to rise as the EU population grows older. Most of these people are often prevented from fully participating in society and the economy because of discrimination as well as physical and other barriers. The EU’s justice minister described the ratification as a, “milestone in the history of human rights”, and thanked the Belgian Presidency of the European Union for assisting in the ratification process. "The UN Convention promotes and protects the human rights and fundamental freedoms of persons with disabilities. In November, the Commission presented an EU disability strategy for the next ten years: concrete measures with a concrete timeline to implement the UN Convention,” said Reding. “I now call on all remaining Member States that have not yet ratified the Convention to do so swiftly. It is our collective responsibility to ensure that people with disabilities do not face additional obstacles in their everyday lives." Parties that have ratified the Convention will need to periodically inform the UN Committee on the Rights of Persons with Disabilities about the measures taken to implement the Convention. The Committee is composed of independent experts and will highlight any shortcomings in the Convention’s implementation and make recommendations. http://www.e-include.eu/en/news/734-european-union-ratifies-un-convention-on-disability-rights 2. Changes to Access to Work The government has announced changes to Access to Work, a disability employment programme, to give disabled people faster and simpler support into work. Access to Work provides financial help towards the extra costs faced by disabled people in work, where this goes beyond what would be reasonable for an employer to meet. From January 2011, disabled jobseekers will be able to find out immediately if they’re eligible for Access to Work support by completing a short on-line questionnaire at Directgov. For more information click: http://tinyurl.com/23vmwyx 3. ONS disability survey One of the largest disability surveys has been published looking at social barriers faced by adults with impairments. Large numbers of disabled people suffered from so much "anxiety and lack of confidence" that they struggled to lead a normal life. The result is a startling gap between what non-disabled and disabled people could manage to do in life. The Life Opportunities Survey by the Office of National Statistics asked disabled people about the most common "social barriers" they face. For full information click: http://tinyurl.com/23z7doo 4. EHRC guidance on public sector equality duty is published The Equality and Human Rights Commission has published non statutory guidance that explains what public authorities in England and non-devolved bodies in Scotland and Wales have to do to comply with the public sector equality duty. From 6 April 2011, when this part of the Equality Act 2010 comes into force, public authorities will need to consider what they are doing to tackle discrimination, harassment or victimisation as well as advancing equality of opportunity and fostering good relations between different groups. The new duty includes disability and replaces separate duties for disability which has been superseded by the Equality Act 2010. For more information http://www.equalityhumanrights.com/advice-and-guidance/public-sector-duties/new-public-sector-equality-duty-guidance/ 5. Legal cases Successful legal case against the police: An Appeal Tribunal has ruled that a police force discriminated against an officer because it did not re-employ her after she changed her mind about resigning. Probationary police officer, Sarah Jane Hinsley, told bosses at West Mercia that she wanted to resign because she felt she could not cope with her job. Her managers tried to talk her out of it but she did resign. She later went to see her doctor and was diagnosed with depression. After this diagnosis, she sought to retract her resignation. The Constabulary decided that they could not take her back once she had resigned, as the Police Act and associated regulations do not permit it. Ms Hinsley submitted a claim for disability discrimination, alleging that the Constabulary had failed to make a reasonable adjustment by not allowing her to retract her resignation and return to work. The Tribunal found that: * there was no power under the Police Act or regulations to allow the Constabulary to do this; and * it would not be a reasonable adjustment to require the Constabulary to go beyond its statutory and regulatory powers. However, following an appeal by the claimant the Employment Appeal Tribunal has now found that: * there is no prohibition in the Police Act or regulations on the Constabulary taking her back; and * it is a reasonable adjustment to allow her to retract her resignation. Alex Lock, a Partner at Beachcroft LLP, commented on the implications of the case: "First of all, it is important to remember that the Constabulary were happy to allow her to retract her resignation: they believed the law did not allow her to do so. As such, the Court was allowing the parties to do what they wanted, rather than imposing something on them. "Secondly, the law regarding resignations has always been qualified, in that employers cannot always rely on a resignation as being final. People can retract resignations where they have resigned in the 'heat of the moment'. If an employer refuses to allow them to do so, that refusal will be a dismissal. This case is a continuation of that rationale, but in a disability context: it is about working out whether that was what was really intended. Did the employee who had had an argument with his boss really want to resign? Did the employee suffering from depression really want to resign? ‘Employers should consider the circumstances in which an employee resigns. If they do so following an argument or fight, do they mean to? If they resign when they are depressed and unable to take a rational decision, should you accept it? "This decision doesn't change the vast majority of resignations which are made by fully functioning employees in normal circumstances and can be relied upon." If an employee could be suffering from some disability, such as depression or other mental impairment when they resign, Lock advises: "Employers should treat such a resignation with caution, as the employee may wish to retract it. In the example of the disabled employee, it may be reasonable adjustment to allow them to retract it. Of course, it may not be a reasonable adjustment, as these things are quite fact-specific. For example, if the employee wishes to retract a resignation 12 weeks into a 13-week notice period, where the employer has already taken on a replacement, I think it unlikely a Tribunal would find it a reasonable adjustment to allow them to retract." Successful case against Royal Mail: Mr Sampford worked as a delivery post person for Royal Mail at its Trowbridge delivery office. On 6 March 2009, he was diagnosed with leukemia, and went on sick leave. In May 2009, Royal Mail referred his case to ATOS Healthcare, its occupational health provider. On the basis of a brief telephone conversation with Mr Sampford, Dr Khan at ATOS Healthcare provided a report to Royal Mail. In his report, Dr Khan stated that, on the grounds that he did not expect Mr Sampford to be fit for work in the near future, and there were no adjustments that would enable him to return, he qualified for ill-health retirement under Royal Mail's scheme. This scheme provides for ill-health retirement where an employee is, for the foreseeable future, incapable of carrying out his or her duties. In this context, "foreseeable future" means a period of at least nine months from the date of the relevant medical opinion. Mr Sampford disagreed with Dr Khan, and at a meeting with Mr Roach, the delivery office manager at Bath, argued strongly that ill-health retirement was inappropriate, especially when the recommendation was based on a 10-minute conversation. Mr Sampford produced a letter from his consultant, who stated that the prospect of ill-health retirement was "very premature". Mr Roach referred the matter to ATOS Healthcare again, and a second report was provided, again on the basis of a telephone conversation with Mr Sampford. This report confirmed that there was no return-to-work date in the foreseeable future, and that Royal Mail needed to make the decision as to whether to proceed with ill-health retirement or give Mr Sampford more time to recover. On the basis of the second report, Mr. Roach decided that the criteria for ill-health retirement were satisfied, and dismissed Mr. Sampford on 14 September 2009. Mr. Sampford appealed against this decision, submitting a report from his consultant that stated that, provided that his treatment went well, he should be able to return to work in the next two to three months. On the basis of that report, ATOS Healthcare recommended that Mr. Sampford's dismissal be rescinded, and he was reinstated on 29 October 2009. Mr. Sampford anticipated a phased return to work but, as a result of delays to his return-to-work date, ATOS Healthcare indicated that he would be fit for full duties on his return without any rehabilitation plan. Mr. Sampford eventually returned to work on 29 April 2010, but found the experience stressful because he felt under pressure to prove that he could do the job. He remained in work, but claimed disability discrimination, alleging that Royal Mail had failed in its duty to make reasonable adjustments for him, first in respect of his dismissal, and second in its insistence on his return to work without a phased reintroduction to the workplace. With regard to his dismissal, the tribunal agreed with him that the relevant provision, criterion or practice (PCP) was the provision in Royal Mail's ill-health retirement procedure whereby an employee who could not demonstrate a likelihood of a return to work within nine months would be liable to dismissal under the terms of the scheme. The tribunal found that this PCP placed Mr. Sampford, as a disabled person, at a disadvantage, as individuals without a disability would be more likely to be able to produce evidence of a probable return to work within nine months. The adjustment that Mr. Sampford claimed that Royal Mail should have made for him was additional patience and a more detailed investigation of his medical condition before reaching the decision to dismiss. The tribunal agreed, finding that once Royal Mail became aware that Mr. Sampford disputed Dr Khan's report and that his consultant was of the view that ill-health retirement was premature, it should have investigated the matter further. Turning to his second head of claim, the tribunal concluded that the relevant PCP was the requirement that he return after a long period of sick leave without any rehabilitation programmed or phased return to work. Royal Mail argued that this PCP did not place Mr. Sampford at a disadvantage in comparison with another employee who had been off work for a similar period of time but who was not disabled, and that, given that he was able to fulfill his full duties when he returned, any phased return or rehabilitation would have had no effect anyway, so could not be regarded as a reasonable adjustment. The tribunal focused on Mr. Sampford's evidence as to the way in which he was able to cope with a return to full duties: he felt vulnerable and under strain. In the tribunal's view, a person returning to work after a long absence that was not related to a disability would not have experienced the same feelings of vulnerability, and this put Mr. Sampford at a disadvantage in comparison with a non-disabled comparator. The tribunal held that to allow Mr. Sampford a period of rehabilitation would have been a reasonable adjustment, and that Royal Mail was in breach of its duty. Upholding the claim in full, the tribunal awarded him £8,000 for injury to feelings. Unsuccessful case regarding delays in appointment: A woman who was made to wait 15 weeks before she could start her new job after she declared she had a mental health disability has lost a claim for discrimination. http://tinyurl.com/5rf3bnc 6. Independent Living Fund to close The fears of disabled people about the future of the Independent Living Fund (ILF) have been confirmed by the announcement that the fund is to close by 2015. The ILF, set up in 1988, provides money to more than 20 thousand disabled people with high support needs to live independently at home out of residential care. For more http://www.disabilitynow.org.uk:80/latest-news2/independent-living-fund-to-close 7. Campaign to boost awareness of sub-titling and audio described films The Cinema Exhibiters Association (CEA) has released the latest version of the ad to be shown across cinemas over the coming weeks which explains about audio described and sub-titled films. A copy of this ad can be seen at http://www.cinemauk.org.uk/mediafiles/_32/ 8. Myths about Incapacity Benefit Why has the number of people claiming incapacity benefit soared? A new study undermines some common theories and assumptions about this issue. With comment from EFD's Nick Bason: http://tinyurl.com/5w3jzwj Contact us enquiries@freeneywilliams.com T 01273 327715 To subscribe or unsubscribe click http://www.freeneywilliams.com/dea-e-bulletin.asp © Freeney Williams Ltd 2011 37 Buckingham Road Brighton East Sussex BN1 3RP T 01273 327715 F 01273 327715 mailto:enquiries@freeneywilliams.com