Learning Disabilities, Autism and Neurodivergence Bill: consultation analysis

Section 8: Employment

Introduction

Given ongoing work and Scottish Government limitations on changing the law in the area of employment, the consultation did not propose any legislative changes. Instead, the consultation set out plans to explore the following in order to promote and encourage more inclusive approaches to employment:

• Under the Fair Work First approach, the recipients of public sector grants and contracts can be challenged in new ways to work towards meeting the Fair Work First principles. This includes taking action to create a more diverse and inclusive workplace, highlighting to employers that it is best practice to undertake disability equality training, including more specialist training for line managers on individual conditions, such as neurodivergence and learning disabilities, where this would enable appropriate support and reasonable adjustments to be provided to staff.
• Training for job coaches on neurodivergence and learning disabilities in the workplace: taking forward the Review of Supported Employment within Scotland, which recommended that work continues to support the professionalisation of the supported employment workforce, including ensuring it is well equipped to provide appropriate support to people with learning disabilities and neurodivergent people.
• Reviewing the language within condition level (employability) data that the Scottish Government collects on employability to ensure it is consistent with the language individuals and professionals use, to ensure that the data is collected and reported in a consistent way.

Main Findings

In total, 449 respondents provided feedback at this section. Among these, there was a broad split between those who supported the ideas set out, those who supported anything new to enhance more opportunities and equality in the workplace, and those who felt quite strongly that this section of the consultation did not go far enough, i.e. that more robust plans or legislative changes should have been proposed.

There was, however, consensus that employment was a means of giving people with learning disabilities positive destinations and learning environments where they could develop many social and work-based skills and, as a result, gain in confidence, self-esteem, self-worth and fulfilment. It was also seen as essential for some in providing structure and routine. As such, any proposed changes to improve access to and retention in the workplace were welcomed, as were measures to ensure that the experience at work was equitable and rewarding.

There was also consensus around what was described as a lack of purposeful work opportunities, especially for people with learning disabilities, and barriers faced by people with learning disabilities and neurodivergent people. Most notably, it was felt that employers often did not understand their needs and/or did not meet them.

Challenging Recipients of Public Sector Grants

In relation to this suggestion, the dominant view among respondents was that they would like to see more action to encourage employers to take proactive steps towards creating a more diverse and inclusive workplace. The promotion of Fair Work First (FWF) and the new proposals to challenge those not upholding the principles of FWF was welcomed on the basis that it would provide an incentive to employers to improve and enhance their practices:

“Fair Work First is already in place and ensuring that best practice as part of this includes disability equality training, including specialist training for line managers on individual impairments, should encourage recipients of public sector grants and those on public sector contracts to adequately train staff to help ensure that any public sector services delivers for all and employs a diverse workforce, with appropriate support for workers that require reasonable adjustments.” (Trade Union & Membership Body)

Several respondents, however, noted that the FWF principles could/should be adopted and upheld more widely across public services and embedded within all public sector contracts rather than being restricted only to the recipients of public sector grants and contracts (and felt that this was a wider challenge). One specific suggestion that was put forward was to incentivise employers with recognition for their compliant practices, where appropriate, with one local authority suggesting this could take the form of recognising or requiring some type of certification (for example the Disability Confident scheme) among grant recipients.

A part of this proposal which attracted considerable feedback was the need for more specialist training for line managers. Several respondents felt that that managers (and employers more generally) needed better understanding of the wide range of needs and adaptations required to make workplaces accessible and equitable. A large cohort stressed that disability training should be mandatory rather than simply ‘best practice’ for any/all employers taking on those with support needs. There were also calls for training around the advantages of employing neurodivergent people in particular, who sometimes have unique skills. Some comments were made that there should be more people with learning disabilities and neurodivergence in leadership roles.

Under this theme, a small number of respondents also discussed the need to further address cultural and organisational barriers around workplace environments. In particular, the growth in 'hybrid' working since the Covid-19 pandemic was something which respondents felt made work environments difficult, specifically where 'hot desking' and open plan office spaces were commonplace. It was suggested that workplace design and layout needed to be considered.

Several respondents noted that places of work (and places such as careers centres/job centres) should/could be better designed to accommodate sensory issues (e.g. having no dress code or uniform, ensuring work spaces do not overload the senses of those with certain neurodivergent conditions in terms of light and sound, etc).

There were also several calls for more flexible and remote working (i.e. working from home) practices to be accepted by employers to help accommodate needs. This would help to support individual’s needs, including anxiety and sensory needs that can be related to busyness, lighting, etc. However, it was felt this would also be mutually beneficial to employers in terms of boosting employee productivity and reducing staff turnover. Indeed, broader support from employers was sought to protect against ‘burnout’ and other anxieties for neurodivergent workers particularly.

Neuro-affirming employment practices were viewed as important tools, both to support people who access services, but also to protect the wellbeing and guard against burnout for neurodivergent staff.

Where people offered tentative or no support for this part of the plan, this was mainly because they felt it did not go far enough. Several respondents suggested that there were existing loopholes which allowed grants and contracts to be used where people with learning disabilities and neurodivergent people were employed but not retained and/or were not being properly treated by colleagues/ management. It was felt that simply highlighting this to employers and challenging poor performance was not enough, and there should instead be legal protection offered to people with learning disabilities and neurodivergent people, as well as more robust reporting and accountability measures in place.

A concern was also raised around the complexities of enforcing the suggested approach in such cases where grant recipients were in receipt of multiple streams of funding from different funders and how evidence and information is requested. Others suggested that more detail was needed on best practice around disability and equality training, including how this would be implemented, what standard employers would be required to reach depending on the size of the organisation, and how this would be different from what is already required and recommended under the Equalities Act:

“Any influence applied to employers/recipients through funding levers must be proportionate as there is a risk that receiving public sector grants becomes unsustainable for employers, particularly smaller and third sector employers in terms of management of the range of conditions placed on them. It is also true that positive action with those who are willing to be at the table is likely to produce more sustainable, positive outcomes.” (Local Authority)

Similarly, it would be difficult to challenge and enforce compliance among private sector employers, it was felt, and so large gaps in coverage would remain.

In a similar vein, others commented that employers (not only those in receipt of grants and contracts) needed to be made more aware of their responsibilities under the Equality Act and punitive action taken against them if they fail, rather than warnings or challenge alone.

Other minority comments include that:

• People with learning disabilities, including people with Down’s Syndrome, should be prioritised within both the Government’s Fair Start Scotland programme and within the Fair Work First approach;
• Plans made to improve workplaces through Fair Work First were less likely to be implemented across low-paid workplaces (and thus have less impact on those in such roles);
• It was important to avoid too narrow a view of the employability support for people with learning disabilities and neurodivergent people in any training delivered;
• Policy measures to improve access to Fair Work First for neurodivergent people should include intersectional considerations, as experiences and needs may differ greatly for neurodivergent people in relation to their gender, or whether they are Black, Asian or Minority Ethnic (BAME), LGBT, or disabled, for example;
• Recipients of public grants should be forced to get mandatory training as part of the Fair Work First approach; and
• A duty should be put on all public authorities to report progress in removing barriers to employment for people with learning disabilities, including making reasonable adjustments.

An additional or alternative suggestion was to provide written guidance to employers about the range of adjustments that could be explored, including how flexible working can be better utilised to support employees with learning disabilities (noting the potential cost implications attached). This guidance could be provided to help employers identify when their duty to implement reasonable adjustments arises, in order to prevent delays in support.

Training Job Coaches

There was considerable support for training job coaches, to equip them with the necessary knowledge and skills to support people with learning disabilities and neurodivergent people to access and remain in the workplace. Respondents viewed that job coaches helped to give people with learning disabilities and neurodivergent people confidence in the workplace, as well as giving reciprocal confidence to employers.

Respondents supported appropriate training to allow coaches to understand the specific needs associated with different learning disabilities and neurodivergent conditions (recognising that support needs were highly specific for each individual):

“Enhancing the skills and knowledge of job coaches who support neurodivergent individuals and those with learning disabilities is crucial. Well-trained coaches are better equipped to provide targeted and effective support, increasing the likelihood of successful employment outcomes.” (Family/Friend/Carer)

Coaches could also play an important role in providing continuity, it was felt, both in terms of helping individuals to stay in work once appointed, and to navigate any confusion, disorientation or breakdown in communications and relationships when a person’s managers and other senior staff moved on.

A recurring theme was the need for any training being done with job coaches to be kept up to date, and designed and delivered with people with lived experience.

While equipping job coaches with learning disabilities, autism and neurodivergence awareness training was viewed as a positive step, respondents also encouraged this to be extended to all staff supporting people to begin, remain or return to work, including, for example, those working in Human Resources.

Suggestions for what the training should/could include were:

• Understanding environmental and workplace challenges and stressors;
• Better understanding and acceptance of some neurodivergent characteristics and behaviours;
• Understanding about possible adjustments that can be implemented;
• Widening appreciation of lack of confidence among people with learning disabilities and neurodivergent people in requesting such adjustments;
• Understanding of specialist skills/abilities linked with some learning disabilities, autism and neurodivergent conditions; and
• Challenging perceptions that reasonable adjustments constitute preferential treatment.

In addition, it was suggested that intersectional training would help ensure that employers are aware of what they can do to support LGBTQIA+ neurodivergent employees, and how to remove barriers to employment or career advancement.

Other reflections included that:

• There had been a perceived decline in the number of job coaches in recent years;
• Opportunities for neurodivergent people to be coaches should be explored (since they may have a deeper understanding of the barriers and struggles faced); and
• The focus of the Bill in this regard should extend beyond just securing employment to include ongoing support for those already in employment.

Several respondents expressed frustration that the Supported Employment Review recommendations 2021 had not been followed through and felt that the Bill was an opportunity for the Scottish Government to create Supported Employment Quality Standards and develop a learning disability and autism employment plan. Some respondents in this cohort suggested that the LDAN Bill should commit to the expansion of existing Supported Employment services or commission additional services in local areas.

There was also a call for the Scottish Government to consider establishing a National Supported Employment Service in partnership with local authorities, to include a Supported Employment Guarantee in the new Bill and to work with relevant partners to pilot the Quality Standard in Support Employment for Scotland.

Reviewing Language Within Employability Data

There was very strong support for this proposal among both individuals and organisations alike. Respondents perceived that reviewing the language would help to both remove existing confusion and bias and facilitate data-driven policy making:

“Reviewing the language within impairment level data collected by the Scottish Government on employability is essential to ensure consistency with the language used by individuals and professionals. This will help accurately reflect the experiences and challenges faced by neurodivergent individuals and those with learning disabilities in accessing employment services and support. Additionally, disaggregating data on employability services and employment support will provide valuable insights into the effectiveness of existing initiatives and inform future interventions.” (LDAN Support/Representative Organisation - Neurodivergent Focus)

Such a review was also welcomed as a way of ensuring that any outdated or inappropriate language in relation to people with learning disabilities and neurodivergent people was identified and removed from future use in all domains.

Where people were unsure about this proposal, this was mainly because different words can mean different things to different individuals. Further, it was highlighted that not all people with learning disabilities and neurodivergent people use the same language and some forms of communication (e.g. Makaton) are very unique in their own right.

Several other respondents again noted that neurodivergent people were referred to as a homogenous group within such plans and noted that there should be increased visibility of different neurodivergent conditions (including ADHD) within data measurement frameworks. More nuanced disaggregation was seen as key.

As with other areas of the consultation, there were also concerns that data must not be collected for its own sake, but must be used to inform real change in terms of employability and success within the workplace.

Other comments included that there were other important data gaps in relation to people with learning disabilities, autistic people and neurodivergent people in employment that needed to be filled. They argued that the issue was not simply about language.

Suggestions for additional data or disaggregation included that:

• Data is collected in relation to people with learning disabilities and neurodivergent people who have a clinical diagnosis, as well as from people who identify as having these conditions in the absence of a clinical diagnosis (to prevent possible under-reporting/skewing of prevalence);
• Employers should have a duty to disaggregate their data on the disability pay gap to show the pay gap for people with learning disabilities;
• There is a need to strengthen data collection around reasonable adjustments in order to increase understanding and share practice nationally;
• A duty should be put on all public bodies to publish data on the number of people with learning disabilities employed, including information on pay, gender and hours of work; and
• Data must be disaggregated to show the type of work being carried out by women with learning disabilities and neurodivergent women in particular (and to explore relationships between gender and flexible ‘low quality’ work with its associated barriers/impacts).

Other comments included that ‘data’ should not be entirely number based but should/could be complemented with lived experience voices and other data from administrative records.

While welcomed, it was again stressed that the LDAN Bill could be used to make requirements in this area mandatory i.e. data reporting to improve accountability. Some also questioned the likely timescale for such a review and how soon it would be implemented.

Reasons for Disagreeing

While there was very limited explicit disagreement with the ideas set out in the consultation with regards to employment, a large number of respondents did suggest that they found this section disappointing in its scope and ambition. In particular, respondents wanted greater exploration of how current laws, including the Equality Act 2010 and the Human Rights Act 1998, can be used to address the deficit in the right to employment for people with learning disabilities.

While there was some sympathy towards restrictions on legislative change, many disagreed that there was little the Scottish Government could do and felt that more progress could be proposed and made in areas where responsibilities were already devolved/through deploying devolved powers:

“We note the Equality and Employment law restrictions on action in this sphere, but also that the right of disabled people to work on an equal basis with others and the duty to support this through access to training, public sector employment, reasonable accommodation etc. is an important part of the CRPD (Article 27)…In that context, the approaches discussed appear limited in their impact on ensuring inclusive workplaces and we would urge that a more comprehensive approach be adopted, up to the limits of devolved competence.” (Academic)

Others (from a broad range of respondent types) simply expressed disappointment that no legislative changes were proposed in the LDAN Bill, which they felt would have been an ideal mechanism through which to address some of the existing challenges in the employment sphere. It was felt that more could be done within current devolved powers to tackle the employment gap and bring more people with learning disabilities and neurodivergent people into the workplace.

A small number of respondents noted that they felt employment issues should be devolved to the Scottish Government and that, if key decisions were retained by the UK Government, this may hinder progress in this area.

As with other areas of the consultation, respondents again stressed that any proposals would fail unless accompanied by corresponding accountability mechanisms. Some also again stressed that, while new legislation may not be required, more needed to be in place to ensure that existing employment and equalities law was adhered to. Overall, there was a large cohort who felt that this was an area of the Bill that could have been more developed and that the proposed changes, as currently drafted, were likely to be ineffective on the scale required.

Other Comments and Considerations

Several respondents gave feedback that was unrelated to the changes presented in the consultation document and instead focused on employment needs of people with learning disabilities and neurodivergent people more generally. These other observations, some of which were contradictory to one another, focused on:

• The current lack of sufficient job opportunities for people with learning disabilities (and less so those with neurodivergent conditions) and the need for more part-time work opportunities, part-time apprenticeships and community and social enterprise positions (to counter the current skew towards volunteering opportunities only);
• To expand volunteering opportunities for people with learning disabilities and neurodivergent people;
• A need for provision of specialist employability programmes that people with learning disabilities and neurodivergent people would be entitled to access and which are designed with them, for them, their needs and the outcomes they desire (with suggestions that there was currently a patchwork of provision of employability programmes across Scotland);
• More support for families/carers of people with learning disabilities and neurodivergent people to secure and maintain work alongside their caring commitments;
• More action to address the disability pay gap and to tackle indirect and unintentional discrimination (especially for those where additional barriers also exist, e.g. race, gender, age); and
• More general support for to help neurodivergent people feel confident in disclosing their conditions to employers, as well as recognition that certain conditions are often more limiting than others.

Another recurring theme was the need to reduce stigma around learning disabilities, autism and neurodivergence, and address inclusive attitudes, tolerance and understanding in society more generally. It was hoped that this would filter through to more inclusive employment policies and practice. Similarly, there was also said to be a need to challenge stereotypes and stigma linked to being ‘out of work’, recognising that, for some with the most profound learning disabilities and other conditions, gaining and maintaining paid employment was not a realistic ambition (but that meaningful societal contributions could still be made).

Although not specifically covered by the consultation suggestions, several respondents noted that interview and recruitment processes were often not user friendly for people with learning disabilities and neurodivergent people. It was felt that this needed an overhaul (i.e. to make interview methods more flexible, application forms easier to understand, more transparent practices, offering alternative processes, etc.) if employment opportunities were to be maximised.

There were also calls for more training for HR departments and interview panels to make them more aware of the needs of neurodivergent applicants. Similarly, respondents wanted better training around learning disabilities, autism and neurodivergence for Job Centre staff and the Department of Work and Pensions (DWP) staff to prevent bias/discrimination during the job seeking process.

A small number of comments were also made in relation to ‘when things go wrong’ and the need for more support for people with learning disabilities and neurodivergent people around such things as work tribunals, disciplinary hearings, etc. This included the provision of independent advocacy, as well as clear and accessible routes for redress.

Among those representing the interests of children and young people there were calls for any work to increase access to employment to link more clearly with education proposals. The LDAN Bill could, for example, consider employment opportunities throughout education, including creating opportunities for children and young people with learning disabilities and neurodivergent children and young people to access appropriate and supported work experience, support and guidance. A suggestion was also made that the Bill should require the establishment of high quality employability activity in schools for pupils with learning disabilities and neurodivergent pupils, and a Senior Phase School Transition Programmes for Young Disabled People. Further, it was suggested that the Government may wish to consider the development of independent brokerage services for young people in each local authority area, i.e. an advice and information service that young people and their parents and carers can access for employment needs.

While there was support for the Scottish Government’s commitment to at least halve the disability employment gap by 2038, some respondents expressed disappointment at how far distant this deadline had been set.

Finally, as with many other areas of the consultation, respondents again encouraged that the effectiveness of these interventions be monitored, and adapted in response to evidence.