Labour Research November 2020

Features

Left out and forgotten

Unions say the government has ‘stepped away’ from talking about disabled people during the coronavirus pandemic, as Labour Research reports.

The COVID-19 pandemic has been devastating for a large part of the UK population, but disabled people have been particularly hard hit. As the CWU communications union points out in a members’ briefing, almost half of disabled adults (45%) have reported being worried about the effect the pandemic is having on their lives, compared to around a third (30%) of non-disabled adults.

In June, the Disability Rights UK charity pointed to Office for National Statistics data showing that disabled women aged under 65 with limiting disabilities are more than 11 times more likely to die from COVID-19 than non-disabled females, and that that disabled men aged under 65 with limiting disabilities are more than six times more likely to die. The figures also reveal that a third of all lives lost to COVID in the UK have been those of disabled people.

According to the CWU briefing, some of the disproportionate impacts disabled people are facing are as a direct result of “the government’s inability to recognise people with disabilities in their policy-making process”.

For example, its emergency legislation, the Coronavirus Act, effectively frees local authorities from their legal duties to provide social care under the Care Act 2014. It also makes changes to the Mental Health Act so those suffering from mental health conditions can now be “sectioned” by just one, rather than two doctors.

In the world of work, the UNISON public services union national officer for disability equality, Deirdre Costigan, says the government has “stepped away from talking about disabled workers” during the pandemic and has taken a medical, rather than a social, rights-based approach. “It has defined people on the basis of their vulnerability to COVID — either ‘clinically extremely vulnerable’ or ‘clinically vulnerable’,” she told Labour Research.

“These are new terms, new categories that are not linked with rights and responsibilities in law, and the government didn’t make clear in its guidance that in the vast majority of cases, people in both categories will be disabled people with human rights and rights under the Equality Act.”

Initial official guidance on shielding also contained no guidance for disabled workers — showing a complete lack of understanding about disabled people, she added. It just assumed that disabled people don’t work. As a result of this approach, said Costigan, “Equality Act protections have been forgotten about by the government and employers.”

Reasonable adjustments

Under the Equality Act 2010, employers have a duty to make reasonable adjustments for disabled people. The aim is to remove, reduce or prevent any disadvantage they face in the workplace. But even before COVID, UNISON’s 2019 Let’s be reasonable survey of disabled members found that just over two-thirds (67%) of respondents were turned down for some or all of the reasonable adjustments they asked for. These included flexible work times and working from home.

Some waited a year or more to be told whether or not they could have the reasonable adjustments they requested.

And in many cases, Costigan says, employers never even reply to the requests. This means people can’t identify when their request was refused, making it difficult to comply with the three-month time limit for submitting a discrimination claim to an employment tribunal.

TUC policy officer Quinn Roache says that for new workers, it can take more than six months to get reasonable adjustments. As this is the average length of a probation period, it means many will have difficulty passing because they need those adjustments.

During the pandemic, 45% of the population worked from home. Roache told Labour Research: “Disabled workers need reasonable adjustments in place at home, but quite a number are in non-optimal situations to help their employer”, without translation software or ergonomic chairs for example.

He added: “At the best of times disabled workers find it difficult to get reasonable adjustments — employers just don’t do it. With the additional stress and financial hardship during the pandemic, they have just gone out of the window.”

UNISON reps have reported disabled members’ employers insisting on a letter from the government to say they were shielding before they were allowed to work from home, even where the employer could easily permit homeworking.

Black disabled workers have faced particular problems, a UNISON survey found, with 17% of Black members who should have been shielding at home forced to go to work. They either only received £96 per week in Statutory Sick Pay (SSP), or were so low-paid they did not meet the £120 per week threshold for SSP and received nothing. They could not afford not to work — or they were afraid of losing their job.

In the post-16 education sector, says Jenny Sherrard, head of equality at the UCU lecturers’ union, many disabled workers have experienced significant delays in getting reasonable adjustments agreed and implemented.

“They have moved heaven and earth to deliver online, adapt to new and changing forms of delivery, and uphold the student experience and continuity of education,” she told Labour Research. “Now, many are being asked to do face-to-face, there are local lockdowns, and the situation is changing every few weeks. We’re hearing from members that the implementation of reasonable adjustments and support has often been too slow and not always effected.”

She has real concerns that disabled workers and reasonable adjustments are “just not uppermost in people’s priorities”. In some cases, disabled staff have experienced a withdrawal of inclusive work practices as a result of a management focus to “just get it done”.

It is not just an issue of specialist equipment provided in the workplace not being available for those working at home, she explained. The UCU supports appropriate personal protective equipment (PPE) but accessibility problems for staff, and students, are not always considered. Face masks prevent lip reading, for example. And intensive online, particularly back-to-back, video conferencing can be particularly challenging for, and can exclude some, neurodivergent workers.

Union reps have also had to fight for even small changes for disabled key workers. Roache gives the example of a blind retail worker in a supermarket.

The worker could not socially distance but was required to continue with his usual frontline role stacking shelves around customers instead of being moved to another role.

The problems experienced by disabled workers have come to the fore during the pandemic, and it has “exposed inadequacies of enforcement and shown that the Equality Act itself might not be strong enough,” said Costigan.

Right to work from home needed

UNISON’s top — and immediate — demand is for disabled workers to have the right to work from home if they want to. The TUC is also calling for disabled workers who have been working from home to have a legal right to continue to do so.

“Disabled workers have the right to homeworking where it is a reasonable adjustment, but it’s not working, because time and time again our members are being told it’s not reasonable, it’s not practical, or even ‘it’s not our policy’,” she said.

“The virus has shown it is reasonable to work from home and the government needs to spell out clearly to employers that working from home is a reasonable adjustment and they need to consider it and help disabled workers to work from home.”

She added: “The virus has been terrible and has devastated the economy, but something positive we can take from it is that activating the right to work at home would save many disabled people’s jobs and make their jobs and working lives easier.”

A June 2020 UNISON survey found half of disabled staff worked from home throughout the COVID-19 pandemic, with nearly three-quarters (73%) feeling they were more, or as, productive.

The reasons for increased productivity included reduced impact on pain and fatigue due to less commuting, and more flexible working with additional breaks or later start times.

Roache also said the benefits include less anxiety and less fatigue. He said some disabled workers with energy-limiting impairments, for example, have told him that even getting to and from work leaves no energy for anything else. “They are telling us they have more energy, are more productive, and are leading more well-rounded lives as a result of being able to work from home,” he said.

Working from home would also have an impact on the disability pay gap, according to Costigan. This currently stands at 15.5%, with disabled workers earning, on average, £1.65 per hour less than non-disabled workers, a gap of around £3,000 per year based on a 35-hour week.

“Disabled workers are concentrated in the bottom pay grades because they are not being given the support they need to succeed in their job,” she said.

UNISON is also demanding that the right to reasonable adjustments includes reasonable timescales, a right to a response from the employer and better enforcement. “The system is not working,” said Costigan. “Even something simple like voice-activated software can mean a two-year wait. Disabled workers can’t do their job properly without it, so they eventually leave and look for another job on a lower pay grade.

“They are blocked from progressing by not being given the reasonable adjustments they are entitled to by law because the right is not clear enough and is not being enforced.”

Union campaigning

Union campaigning has achieved some significant wins for disabled workers during the pandemic.

For example, in August, the Department for Work and Pensions announced an extension to the Access to Work (AtW) scheme. This is the publicly-funded employment support scheme that pays towards any extra employment costs that result from a disability.

It announced that new help would be available to disabled people working from home and that the scheme would be extended to pay for specialist equipment, travel costs and to address mental health issues.

AtW still needs greater investment, says UNISON. Some of its disabled members were told they could not apply for financial support under the scheme if they were not key workers, demonstrating the scheme’s lack of capacity.

UNISON wants more publicity for AtW and for an online application option, rather than paper, being the default. “We were delighted with the announcement, but more still needs to be done to close the gap in the middle of what the scheme will fund and what employers will fund,” Costigan said.

UNISON also forced changes to Department for Business, Energy and Industrial Strategy (BEIS) guidance on those who have been shielding — who are at increased risk of severe illness from COVID-19. This now makes clear that workers who have been shielding should continue to work from home if they can, rather than returning to their workplace, although there are still problems with the guidelines.

“The problem with ‘COVID-secure’ workplaces is that the risk is not the same for all workers,” said Costigan. “Some people are four times more likely to get coronavirus and 11 times more likely to die if they are infected. Not everyone is equally safe.”

A key TUC demand is continued support for the small group of workers who, for disability or health-related reasons, are unable to return to work.

The Coronavirus Job Retention Scheme provided financial support for employers affected by the pandemic to furlough workers. However, it ended on 31 October and has been replaced by a less generous scheme (see page 19).

It is working with a group of health charities on a #yourmoneyoryourlife campaign calling on the government to put in place a scheme to protect workers who would be putting their lives at risk by going back to work.

The TUC is also calling for stronger legal protection to prevent disabled workers who have been shielding from being unfairly targeted for redundancy. It says the government must also make spending decisions in line with its Public Sector Equality Duty (see box).

Disabled people must be protected in the recession

Unions are concerned that disabled workers will be hardest hit as we head into the recession caused by the pandemic.

TUC policy officer Quinn Roache points to an April 2020 briefing note by the Disability at Work research group, Disability and the economic cycle — implications for a COVID-19 recession.

This shows “disabled people are the first out of the door and unfairly targeted for redundancy, and the last to gain employment” in any recovery, he says.

“Meanwhile, those who stay in work experienced negative impacts on their terms and conditions, including lost overtime.”

“The TUC has done a lot of work on the disability employment gap and the disability pay gap and we don’t want to see a regression in progress,” Roache told Labour Research. “It has taken years to get the employment gap up from 48% to 51% and we are really concerned that could be undone in this recession.”

In August, Citizens Advice published the results of a survey of 6,000 people showing that disabled people whose disability has a large impact on their day-to-day lives, and those who previously shielded — along with parents and carers — are at least twice as likely to face redundancy as the rest of the working population.

It shows the risk of redundancy is widespread, with one in six (17%) of the working age population facing redundancy, and those in more vulnerable circumstances likely to bear the brunt.

One in four disabled people (27%) were facing redundancy and this rose to 37% of those who said their disability has a large impact on their day-to-day life. Half of those who were in the shielded group (48%), as they were extremely clinically vulnerable to coronavirus, were at risk of redundancy.

To prevent disabled workers who have been shielding from being unfairly targeted for redundancy, the TUC wants to see something akin to maternity protection, whereby they would have the right to return to their job.

And, says Roache: “We are calling on the government to learn lessons from previous recessions when it didn’t pay enough attention to its Public Sector Equality Duty (PSED) to ensure that its spending decisions, including funding and cuts, do not impact unfairly on people with protected characteristics.”

Under the Equality Act 2010, it is against the law to discriminate against someone because of age; disability; gender; marriage and civil partnership; pregnancy and maternity; race, religion or belief; sex or sexual orientation. These are called protected characteristics.

The PSED requires the government to eliminate unlawful discrimination, harassment and victimisation and other conduct prohibited by the Act, and to advance equality of opportunity between people who share a protected characteristic and those who do not.

It must also foster good relations between people who share a protected characteristic and those who do not.

Roache says government departments must take a holistic approach, rather than making spending decisions separately, in order to work together to ensure they do not impact on disabled workers disproportionately.

The UCU has called for no return to default face-to-face teaching in colleges and universities and expressed concern about the migration of a million students across the UK at the beginning of the autumn term.

“This presents a real risk, particularly to people with co-morbidities [more than one disease or condition present in the same person at the same time] and many disabled staff who are in vulnerable categories,” said Sherrard.

“Universities need to be supported by government to put safety at the forefront of policy. The marketisation of education means there is a focus on putting ‘bums on seats’ so universities don’t lose out on fees.”

Sherrard added that the government “must take steps to support the post-16 sector to be able to put safety first rather than having to worry about the bottom line in these extraordinary times”.

CWU, Coronavirus (Covid-19) and the impact on people with protective characteristics (http://www.cwu.org/wp-content/uploads/2020/06/LTB-302-20-Attachment-Covid-19-impacts-on-people-with-protective-charateristics.pdf)

Disability at Work, Disability and the Economic Cycle – Implications for a COVID-19 Recession (https://www.disabilityatwork.co.uk/wp-content/uploads/2020/04/disability@work-COVID-19-recession-briefing.pdf)

TUC, Protecting disabled people working from home (https://www.tuc.org.uk/blogs/protecting-disabled-people-working-home)

UCU, Disabled workers returning to work (https://www.ucu.org.uk/media/11155/Return-to-work---information-sheet-DF/pdf/Return_to_work_-_information_sheet_DF.pdf)

UNISON, Give disabled people the right to work from home after Covid-19, says UNISON (https://www.unison.org.uk/news/press-release/2020/08/give-disabled-people-right-work-home-covid-19-says-unison)

UK government, New help on offer for disabled people working from home during the pandemic (https://www.gov.uk/government/news/new-help-on-offer-for-disabled-people-working-from-home-during-the-pandemic)