issue 43 autumn 2015

www.workingfamilies.org.uk

waving not drowningthe newsletter for carers and parents of disabled children who work or wish to work

As a parent or carer of a disabled child,how can I use the disabilitydiscrimination laws in the workplace?Even if you are not disabled yourself, if you have (or look after) a disabled child,you can be protected from discrimination in the workplace in some circumstances.

You can bring a claim for harassment or direct discrimination by associationSince 2008, the law protects you from direct discrimination by association. It doesnot matter that you are not disabled yourself. It is enough that you are closelyassociated with a disabled person (typically, that you are the parent or carer of adisabled child). Discrimination by association occurs when a person is treated lessfavourably because they are linked or associated with a protected characteristic.The person does not have the protected characteristic but they are treated lessfavourably than others because of a protected characteristic of a friend, spouse,partner, parent or another person with whom they are associated. So, if your employerharasses you or treats you differently from other employees because you care fora disabled child, you can bring a claim for disability discrimination by association.For instance, if your manager makes disagreeable remarks on your child’s disabilityor targets you and refuses your flexible working requests because you have a disabledchild, you can claim like Ms Coleman that you are suffering from harassment anddirect discrimination by association. Since Coleman v Attridge Law and another[2008] IRLR 722, which was reported in Waving not drowning, summer 2009, youcan bring direct discrimination claims based on association or perception and theEquality Act in 2010 confirmed this. This could apply to many different situations.For instance, a lone father caring for a disabled son has to take time off workwhenever his son is sick or has medical appointments. If the employer appears toresent the fact that the worker needs to care for his son and eventually dismisseshim, the dismissal may amount to direct disability discrimination against the workerby association with his son. And in Price v Action-Tec Services, [2013] EqLR 429,a telesales executive had just passed her trial period, but was then dismissed afteran absence from work related to her husband's leukaemia. The employment tribunalsaid the employer made a stereotypical assumption that, because of the disabilitiesof (herself and) her husband, the claimant would be an unreliable and under-performing employee. Accordingly there was direct discrimination.

But until very recently you could not bring a claim for indirect discrimination by association However, bear in mind that the law does not provide a specific protection againstdiscrimination for parents or carers. If for instance an employer refuses to promoteyou because you have childcare responsibilities, such a refusal would only bediscriminatory if it was because of disability of your child rather than because youcare for a child. An employer who treats, or would treat, all persons with caring

responsibilities equally badly, regardless of the disability of the person cared for, willnot be guilty of direct discrimination.

And the protection against disability discrimination by association currently is onlyfor direct discrimination and harassment, not for indirect discrimination. So youcould not argue that your employer’s refusal of all flexible working applications isdiscriminatory because it has the effect of effect of putting all those associated witha disabled child at a disadvantage. It may be that your child’s condition means youhave to go to far more medical appointments than a parent of a non-disabled childwould normally need to. And that therefore the option to vary your hours is far morecrucial for you than for a parent of a non-disabled child. But you could not use thefact that your employer’s systematic refusal to vary your working hours puts youas a parent of a disabled child at a specific disadvantage. You could not claim thatthis indirect disability discrimination because indirect disability discrimination onlyworks if the employee is himself or herself disabled. It does not apply to disabilitydiscrimination by association.

In Perrott v Department of Work and Pensions ET/1600205/11, an employee whotook ‘special leave’ to care for his disabled sister argued that the aspects of theemployer's special leave policy amounted to associative direct disability discrimi-nation. But the tribunal rejected his claim. The employee was not treated lessfavourably because of disability: all employees who were granted special leave weretreated in the same way under the policy, regardless of whether they were lookingafter a disabled person.

And you could not claim that your employer should have made reasonable adjustments because you are associated with a disabled personTraditionally, although your employer has to make reasonable adjustments in relationto its disabled workers (sections 20(3) and 39(5), Equality Act 2010), it does nothave to do so in relation to its workers associated with a disabled relative. Neitherthe Coleman case nor the Equality Act have created an obligation to make reasonableadjustments for carers of disabled children. So if your employer for instancepostpones your parental leave request and does not allow you to take it at the datesyou want because it would mean that it would have to hire extra help, you could notclaim that it would have been a reasonable adjustment to bear this extra cost andthat this postponement is discriminatory because it amounts to a failure to makesuch a reasonable adjustment. There is currently in English law no duty to makereasonable adjustments if the employee is not himself or herself disabled.

manager training around flexibility is moving away from an opt-in option, to arequired competence. Getting line managers to see the benefits of flexibility is easierwhen it is clear how it aligns with the overall strategy and plan, and peopleunderstand the ‘why’.

You can read more about this year’s Top Employers for Working Families atwww.topemployersforworkingfamilies.org.uk

The 2015 Top Employers for Working Families Awards showcases some of thebest and most innovative current practice that there is when it comes to familyfriendly and flexible working.

Long established categories like motherhood and maternity are still hot topics asorganisations refine and develop their policies, whilst innovation is strong as theythink about where, when and how work might be done. The introduction of SharedParental Leave has been especially interesting this year, and it is evident that it hasreally stimulated some employers to move forward their provision for parents.

One of the key themes this year has been around refreshing and refining familyfriendly working. We have seen examples of investment in support for job-share,and repositioning and communicating existing flexible working opportunities as partof an organisational refocus on building a flexible culture appropriate for allemployees. Culture is important, and the Awards demonstrate that employers arereally embracing this. Getting it right can be a challenge, and one of the questionswe asked this year was about evidence: how do you know that what you are doingis working? More than ever, employers have been able to back up their entries withmetrics. The evidence base that employers were able to submit is important fortwo reasons: it shows how they are working to understand how policy unfolds intopractice; and it gives a useful example to other employers who are wondering howthey might start to quantify some of their own family-friendly programmes.

Related to culture, another theme that came through strongly was a focus on theimportance of line managers (not just in the Line Managers award). Line managersare increasingly seen as the key to unlocking the full potential of flexible working,but to do this they need support and training to develop skills around managingdifferent working patterns, and building trust with their teams. In this context, line

In Hainsworth v Ministry of Defence [2014] EWCA Civ 763, the Court of Appealconfirmed that an employer was not obliged to make adjustments for a non-disabledemployee whose daughter has Down's syndrome. The Ministry of Defence (MoD)provided facilities to educate children of employees who worked outside the UK,but these were not designed for children with ‘significant needs’, so Ms Hainsworth’sdaughter could not be schooled in the garrison in Germany where Ms Hainsworthworked. As a result, in 2011, Ms Hainsworth requested a transfer to the UK to helpher meet her daughter's needs. The MoD rejected the request, and Ms Hainsworthbrought a claim that the MoD should have made the reasonable adjustment oftransferring her to the UK owing to her daughter's disability. The Tribunal held thatthe EqA 2010 only requires an employer to make reasonable adjustments for anemployee or job applicant who is disabled. It does not oblige employers to makeadjustments for a non-disabled employee who is in some way associated with adisabled person. The Court of Appeal confirmed that the EqPA 2010 could not beinterpreted as creating an obligation to make reasonable adjustments for employeesassociated with a disabled person.

However, a recent decision of the European Court of Justice is changing thisAs the law currently stands, discrimination by association is only limited to casesof direct discrimination or harassment. As a parent of a disabled child, you can’tbring a claim for indirect disability discrimination or failure to make a reasonableadjustment. But on 16 July this year, the European Court of Justice radically decidedthat in the context of race, that there could be indirect associative discrimination(CHEZ Razpredelenie Bulgaria C-83/14, 16 July 2015). It said that the definition ofindirect discrimination in the Race Directive is not inconsistent with the concept ofassociative discrimination. And the fact that the concept has only arisen in cases

involving direct discrimination does not mean that it cannot be considered in anindirect context. Whilst CHEZ concerned the provision of goods and services, thereis plainly a compelling argument that the same principles would be applicable todiscrimination within the employment field and although CHEZ concerned racediscrimination, it could potentially be applied to disability discrimination cases.An exciting development! This would mean that the UK would end up to have toreview its legislation, allow indirect disability discrimination claims by associationand create a duty to make reasonable adjustments for employees caring for adisabled child. Meanwhile, UK courts considering claims under section 19 wouldhave an obligation to disapply any wording that conflicts with the Directive. Theywould also, where necessary, be able to ‘read in’ words in order to make thelegislation compatible with EU law. It is potentially an extremely useful weapon forparents of disabled children.

But beware, CHEZ is an unusual case and mostlegal commentators would not have predictedsuch a radical change in the law. So watch thisspace, these are interesting times!

Sybille Raphael (Right)Working Families’ Legal Adviser

As you can see from the above article, discrimination can be very complex. If you think this might be happening to you at work,make notes and ring the Waving not drowningdedicated helpline, 020 7017 0072, - Ed

Sarah Jackson, Working Families CEO, (left) with winners

Top Employers for Working Families Special Awards 2015

The government has now set out their plans to change how support will be fundedfor disabled students in Higher Education Institutions (HEI). The government wantsthe non-specialist support that disabled students need to be provided by universities,under the Universities’ Equality Act duty to make reasonable adjustments. It’sexpected that the DSA (Disabled Student’s Allowance) reforms will be implementedfor disabled students entering higher education in the 2016-2017 academic year.

DSA will still be in place for disabled students needing specialist support such asBritish Sign Language, study skills tutoring and mentoring. DSA will fund staff whohave undertaken specialist training in supporting disabled students in educationsettings and will require them to be trained or qualified to support disabled students.

Funding for computer equipment (including printers and scanners) may be funded by DSA, but only on a case-by-case basis.

Disabled Student’s Allowance reform Consultation

In July 2015 the government announced another consultation on their plans toreform the Disabled Students Allowance. The substance of the consultation reflectsthe government’s ongoing drive to rebalance the responsibilities of providing supportfor disabled students between the Department for Business Innovation and Skills(BIS) DSA grants and Universities using their Equality Act 2010 reasonableadjustments duties. This time round there is greater clarity of whether it’s the HEIor the DSA that should be funding assistance for the wide-ranging support fordisabled students participating in higher education.

The central focus of the DSA reforms is on the funding of non-medical help (NMH)support workers.

• What support will still be funded under the DSA scheme? Generally speaking, DSA would continue to fund additional support where it isunreasonable for HEI providers to supply the support as it is of a more specialistnature. Specialist support is support provided by someone with a qualification,appropriate training, or who has specific levels of knowledge or experience toperform his or her role.

The government will continue to provide DSA for communication support workers,Electronic Note Takers, Specialist Transcription Service, Mobility trainers, specialistmentors, specialist one-to-one study skills support, BSL Language Support Tutorsfor the deaf and assistive technology trainers as such roles fall under the categoryof specialist support.

• What support will HEIs be expected to fund and arrange under the required Equality Act 2010’s reasonable adjustments?Practical Support Assistants, Library Support Assistants, Readers, Scribes,Workshop/Laboratory Assistants, Sighted Guides and Proof Reader/text checkersand manual note takers should primarily be funded and provided by HEIs. Theseroles have been classified as not of a specialist nature.

• Whilst the government’s preferred option is for HEIs to fund all non-specialist NMH support workers, nevertheless they have invited comments on four alternatives which are

• No change to the current arrangements – i.e. DSA will fund all support. • Transfer responsibility for all NMH support work to HEI providers with someor all of the costs being met under the HEI’s Equality Act 2010 reasonableadjustments duties.• HEI providers fund limited NMH with DSA top-up – similar to the School andLocal Authority SEN arrangements. • Disability Officers based in HEIs determine if support should come from theHEI provider or through DSA.

Accommodation

• What will still be funded under the DSA scheme? DSA funding would also remain available to students living in types ofaccommodation where additional costs are incurred because of their disability, forexample students renting accessible accommodation in the private sector.DSA would continue to be available towards the additional costs of accommodationwhere additional costs are incurred solely because of the student’s disability, andwhere it would not be reasonable for the HE provider to meet the costs of such anadjustment.

• What will fall under the HEI’s Equality Act 2010 reasonable adjustments responsibilities?Additional costs associated with providing specialist accommodation if owned andmanaged by the HE provider or its agent.

• Peripheral Equipment and Consumables(This covers printers and scanners, computer keyboards, USB hubs, laptop carrycases, extension leads, surge protectors or computer stands/risers)

The expectation is that HEIs should reduce the need for disabled students makinga request for DSA funded printers and scanners. HEIs will need to consider whatreasonable adjustments can be made for disabled students using Library Servicesthat would reduce the reliance on DSA funded equipment. For example LibraryServices should provide materials in alternative formats and longer library loans toreduce reliance on scanning and printing facilities. Where hard copy of materials isrequired, HEIs should consider how they can use their own printing facilities withoutpassing the additional cost onto the disabled student.

DSA will continue to fund printers and scanners in exceptional circumstancesthrough their exceptional case process. Where individual printers or scannersare provided, ink and paper consumables would also continue to be fundedthrough DSAs.

• Standard computer peripheralsDSAs will no longer fund individual purchases of stand-alone computer peripheralssuch as keyboards, standard monitors and standard mice unless they form part ofa recommendation for a desktop computer.

DSA funding will not be available for the purchase of standard speakers,headphones, USB drives or USB items as a matter of course. DSA funding wouldstill remain available for headsets and other items where they are essential foreffective use of specific assistive software that has been recommended.

DSA will no longer fund USB hubs, laptop carry cases, extension leads, surgeprotectors or computer stands / risers, unless they are required solely to meet adisability-related need.

• Audio capture Equipment (for example Digital Voice Recorders, microphones,recording pens)HEIs will be expected to consider how they can meet the needs of their studentsthrough improved lecture capture facilities. If improved lecture capture facilitiesdo not meet the needs of individual students, assessors should considerwhether adequate personal recording of lectures and seminars can be achievedvia a laptop or smart phone before recommending an audio capture device.DSA may be available to cover the costs of smartphone apps for recording lecturesand seminars.

• Exceptional Case Process The exceptional case process will be available for disabled students when they wantto make a case for DSA funding for some specific disability-related support via the

Simone Aspis of The Alliance for Inclusive Educationexplains Changes in the Disabled Student’s Allowance

www.workingfamilies.org.uk

In briefNews for Working Parents and Carers

• Have you thought of unlimited holiday instead of flexible working? See thisarticle in an HR magazine.www.hrmagazine.co.uk/hro/news/1152100/unlimited-holiday-great-alternative-to-flexible-working

• Four million people are homeworkers but more want to join them.www.tuc.org.uk/node/122957 . ACAS (Advisory, Conciliation and ArbitrationService) www.acas.org.uk, has a helpful information booklet abouthomeworking for employees and employers.

• You can read about a day in the life of a carers’ employment supportofficer at www.theguardian.com/social-care-network/2015/jun/12/i-left-a-life-of-fish-to-help-carers-find-careers

• From May 2015 the maximum penalty for employers not paying theminimum wage will rise to £20,000 per worker instead of per employernotice. Don’t forget that not only are you entitled to get at least the minimumwage, but you also have to pay it if you are an employer, perhaps of a PA(personal assistant).

• 130,000 UK children are pushed into poverty as working parents struggleto pay rising childcare costs, according to new research published byGingerbread, the organisation for lone parents, and the Child Poverty ActionGroup (CPAG). www.gingerbread.org.uk

• ‘Our offices and factories should be places where people can balancework with other responsibilities without detriment to their careers’, says TUCNorthern Region Secretary. Read the arguments for her case at www.tuc.org.uk/node/123008

• The government has proposed compulsory first aid training for nurseryworkers and The Welsh Assembly has been consulting re the possibleextension of the requirement for the registration of childcarers caring forchildren up to age eight up to 16 (17 if disabled).

• If your employer is a member of Employers for Carers they might beinterested in the ‘Engaging Carers in your Workforce Toolkit’. www.employersforcarers.org

News for Parents and Carers

• A landmark judgement from the Supreme Court has ruled that the removalof DLA (Disability Living Allowance) from children in hospital is a breach ofhuman rights, www.cafamily.org.uk

• You can find out about learning disability awareness courses atwww.fpld.org.uk

• This report, www.engender.org.uk/content/publications/A-Widening-Gap---Women-and-Welfare-Reform.pdf , describes how women in Scotland arebeing failed by welfare reforms, although women are among the furthestfrom the labour market, mainly due to caring responsibilities.

• Rise Above is information and chat for teens set up by Public HealthEngland. http://riseabove.org.uk

• NHS England has produced a report promoting, protecting and improvingthe mental health of children and young people.www.gov.uk/government/uploads/system/uploads/attachment_data/file/414024/Childrens_Mental_Health.pdf

DSA route. The process is available for disabled students who believe thereis an exceptional case for why DSA rather than the HEI should arrange thenecessary support. So whilst for example HEIs are expected to fund non-specialist Non-medical Help, DSA funding maybe available to cover costs inexceptional circumstances.

• Assessments and Proof of Eligibility There appears to be no consultation question on proof of eligibility – thegateway to securing DSA grants. In the previous consultation disabledstudents would be required to pay for any medical evidence that would notbe funded by the NHS or provided free of charge by GPs or other clinicians.In addition the student’s specific learning difficulties must be confirmed afterreaching the age of 16 years of age by an educational psychologist.

The requirement for disabled students to pay £200 towards the cost of aDSA funded computer is not included in the consultation document.

Simone Aspis

What Did Katy Do in the 21st Century?I loved the 19th century classic, What Katy Didby Susan Coolidge, when I was a child andaccepted unquestioningly its story line aboutlively but naughty Katy who became disabled as a result of her disobedience.She couldn’t walk, was confined to her room until Saintly Cousin Helencounselled her to become a little mother to her brothers and sisters. Katylearned to be ladylike, found her place at the heart of the family and,amazingly, she was cured! Children’s author, Jacqueline Wilson, like me hadenjoyed the book as a child and, on re-reading it as an adult felt thatsomething needed to be done about the message.

Wilson’s recently published book, Katy, is a re-working of What Katy Did ina 21st century setting. It’s a great read. The plot zips along. The reader isabsorbed by Katy’s spirited attitude to life which has a habit of turning outwrong, if not disastrous. Severe Aunt Izzie has become a step-mother,mother to ‘the littlies’, who is trying her best. This has the advantage ofproviding a time gap since the loss of Katy’s and her sister, Clover’s ownmother. Katy resents her step-sister and misses her mother but is a pastmaster at imaginative play and leading the gang. She keeps getting intotrouble because things go wrong providing ample opportunity for comedy.Contrary to commonly received wisdom about children preferring bookswritten in the third person, we see the world through Katy’s eyes. Wilsonknows what she is doing.

The day of the accident comes and modern Katy’s and Coolidge’s Katy’sstories diverge. There is a long stay in hospital, fairly explicit descriptions ofthe trials of being paraplegic, stress, worry and hurt seen through 11 yearold eyes with a little gloss and omission. Reasonable adjustments anddisabled persons’ rights are unrealistically easily obtained, but it’s a fairlyrealistic but positive view of lively, lovable Katy’s new life. Perhaps timemoves a little faster these days, but the very topical references to computergames and other current gadgets in this book make it a very up to the minuteread for to-day’s children may prevent it from becoming beloved before itbecomes a classic.

The book is intended for the general reader and I can recommend it fordisabled and non-disabled children for the simple reason that they are likelyto enjoy it.

Janet Mearns

Katy, Jacqueline Wilson, Pub: Penguin, hardback £12.99 also available as an e-book

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In briefNews for Disabled People

• Several organisations have published guidance for people wanting toemploy a PA (Personal Assistant), Scope, www.scope.org.uk, ACAS(Advisory, Conciliation and Arbitration Service), www.acas.org.uk, andthe Pensions Regulator (about automatic enrolment in pension schemes,which is becoming compulsory), www.thepensionsregulator.gov.uk. HM Revenue and Customs has extended the Employment Allowance(remission of some employer’s National Insurance contributions) todisabled people who employ a personal assistant.

• You can read a focus paper on implementing the United Nations’Convention on the rights of disabled people athttp://fra.europa.eu/sites/default/files/fra-2015-focus-05-2015-crpd.pdf

• Changes to the Motability Scheme are afoot, seewww.transportforall.org.uk/news/significant-changes-to-the-motability-scheme-

• You can sign up to a variety of disability related e-learning courses atwww.disabilitymatters.org.uk

• The government hopes that upcoming changes to Access to Work willhelp more disabled people into work.www.gov.uk/government/news/new-measures-to-support-more-disabled-people-into-work , and Assisting Young People into Work, areport by the National Assembly for Wales, took particular account of thebarriers faced by young disabled people, www.assembly.wales .Unfortunately. a new study has found that under the coalition governmentthe experience of disabled people in the workforce deterioratedhttp://dpac.uk.net/2015/04/new-study-finds-workplace-hell-for-disabled-workers/ . This study of the employment experiences of disabled people,with a focus on mental illness, www.tuc.org.uk/sites/default/files/Disabil-ityandEmploymentReport.pdf has much information about disabledpeople in general and how issues can be addressed.

• In Mental Health Awareness Week, 11-17 May 2015, the Mental HealthFoundation was talking about mindfulness. www.mentalhealth.org.uk/our-work/mentalhealthawarenessweek/

• 1 May 2015 was blogging against disablism day.http://blobolobolob.blogspot.co.uk/2015/04/blogging-against-disablism-day-2015.html

• The new National Theatre boss has said he hopes to stage more workthat will focus on the issue of disability as well increasing the diversity,which includes disabled people, of backstage staff.

• The latest version of Transport for London’s Your Accessible TransportNetwork is at www.tfl.gov.uk. It includes details of some improvementson their previous plans but, unfortunately, some delays too.

• The theme for this year’s UK Disability History Month, 22 November-22December, is Portrayal of Disability: Then and Now.

Edited by: Janet Mearns for the Working Families’ Children withDisabilities Project

Printed and designed by: MWA Design

Published by: Working Families, Cambridge House, 1 Addington Square, London SE5 0HF

Tel: 020 7017 0072 (Janet Mearns’ direct helpline) 020 7253 7243 (admin)

Email: janet.mearns@workingfamilies.org.uk

The views expressed are not necessarily the views of Working Families

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The legal helpline number is 0300 012 0312

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Dear Janet

I was interested to read about the Supreme Court ruling that removing DLA(Disability Living Allowance) from children in hospital was grossly unfair andviolated their human rights. Will this only apply to hospitals though? Our son'sDLA has been withdrawn while he is at residential college but we still need topurchase things to support him at college like iPad and support frame to attachiPad to wheelchair, extra clothing as he dribbles a lot and his clothes are washedmore so need replacing more, etc etc? Do we have to go to court over it?He will get DLA in holiday time (subject to confirmation) and I get Carer’sAllowance only in holiday time (of course, which I understand as I am not atcollege with him).

But we also have to pay back all DLA (care element) for last two terms whilehe was at College, so we will probably have to negotiate a weekly or monthlyamount with the DWP (Department for Work and Pensions)!

He can't apply for ILF (Independent Living Fund) as that is now closed but heis getting ESA (Employment Support Allowance).

I wonder how many families are in the same position where their child is astudent at a residential college and are having their DLA withdrawn during termtimes, but still providing for additional personal care needs and communicationneeds that the Local Authority don't pay for?

Teresa Culverwell, Tipton, West Midlands

Teresa’s son, John-Luke,(left) and husband, Martyn, (right)

Have your say Email or write to Janet Mearns, janet.mearns@workingfamilies.org.ukWorking Families, Cambridge House, 1 Addington Square, Lonon SE5 0HF

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