Learning Disabilities, Autism and Neurodivergence Bill: consultation

Section 8: Employment

What we heard:

Employment can help people to feel valued, and contribute to more independent living. While employment should not be seen as the only option to be a valued member of society, opportunities and choices to work are important for everyone.

The Scottish Government is focused on supporting those furthest from the labour market to progress towards, enter, and sustain employment. We are committed to high quality, fair and inclusive work and employability support. However, we know that many neurodivergent people and people with learning disabilities continue to face barriers to employment.

In 2016, we committed to halving the Disability Employment Gap, outlining the initial steps that would be taken to achieve this by 2038 in A Fairer Scotland for Disabled People: Employment Action Plan^[207] (2018). The latest full year data estimated the employment rate for disabled people aged 16 to 64 at 50.7 per cent.^[208] This was significantly lower than the rate for non-disabled people (82.5 per cent), and represents a disability employment gap in Scotland of 31.9 percentage points.

It is estimated that employment rates are 4-8% for people with learning disabilities^[209] and 29% for autistic people^[210], compared with Scotland's national employment rate of 82.5% for non-disabled people and 50.7% for disabled people.^[211] The Office for National Statistics has also reported that the employment rate for 'severe or specific learning difficulties' is 26.2%.^[212]

We have heard from neurodivergent people and people with learning disabilities, that they often feel excluded from the world of work. We have also heard that they want support to find work and hold down a job so they can contribute to, and feel part of, society.

What did LEAP think?

• Workplaces are often not neurodivergent and disability-conscious or adaptive to people's individual needs. This includes during recruitment as well as in the workplace.
• There can still be a lot of stigma in the workplace and it should be challenged.
• There is a lack of clarity on what reasonable adjustments are and look like in individual circumstances, and there needs to be more consistency in the understanding and implementation of reasonable adjustments as it was felt that "reasonable" gave employers too much leeway to refuse.
• A booklet should be written to explain what reasonable adjustments mean and made available to all employers in Scotland. There should be a clearer way to monitor adjustments and to challenge when requests are rejected.
• Employers should consider what could be done to make workplaces and job roles more autism/disability friendly for everyone rather than there just being a focus on the right to request reasonable adjustments.
• There is a need for employers not to employ neurodivergent people as a tick-box exercise but to recognise their strengths and engage in ongoing development to avoid them being underemployed. Additionally to not assume every neurodivergent person is the same.
• Public sector contracts should include a requirement around having employees that are neurodivergent people or people with learning disabilities. Or, there should be a need to have accreditation of being an inclusive employer for organisations that receive public funding.
• Full-time work often is not accessible (even with adjustments made). A higher number of part-time and flexible roles available, including through supported employment programmes, would address the employment gap.
• There was agreement to the Scottish Government's separate proposals for a new duty on employers to report on the disability pay gap. It was thought that this data should be disaggregated to show the pay gap for neurodivergent people and people with learning disabilities.
• Employers should be doing more to be inclusive and adaptive, including greater accessibility in the recruitment process. Competency based interviews may not work for neurodivergent people or people with learning disabilities.
• Employers and employees (as well as support workers and job coaches) should be trained to work alongside neurodivergent people and people with learning disabilities.
• Employers should have business strategies and policies suitable for neurodivergent people and people with learning disabilities and these strategies need to be monitored and controlled.
• There should be better information sharing and promotion of work-related support such ashttps://www.gov.uk/government/collections/disability-confident-campaign^[213] and Access to Work^[214].
• LEAP members were concerned that the social security benefits system disadvantages people with learning disabilities who want to get work (the 16 hours cap)
• The experience of people with learning disabilities is that they can often experience bullying at work and their opportunities to progress are generally very limited.
• LEAP members feel the entire system of trying to get into employment is extremely complex and confusing and that it needs to be streamlined and made much more learning-disability friendly.

Where do we want to get to?

• A workplace culture of inclusivity, understanding and acceptance, where there is no stigma surrounding neurodivergence or learning disabilities.
• More neurodivergent people and people with learning disabilities in employment.
• Reasonable adjustments being more easily understood, with neurodivergent people and people with learning disabilities feeling knowledgeable and empowered to request reasonable adjustments.
• Reasonable adjustments effected quickly and appropriately.
• Recruitment exercises being more accessible and inclusive.
• Data on employability services and employment support should be disaggregated to the level of condition (eg neurodivergent or learning disabilities), to ensure we know that people with learning disabilities and neurodivergent people are being supported into employment proportionately to the general population and that employment is sustained.

What happens now?

The Equality Act provides a legal framework to protect the rights of individuals and advance equality of opportunity for all. Section 149 of the Equality Act places a duty on public authorities in the exercise of their functions and others who exercise public functions to have due regard to the need to:

• eliminate discrimination, harassment and victimisation and any other conduct that is prohibited by or under the 2010 Act;
• advance equality of opportunity between persons who share a protected characteristic and those who do not;
• and to foster good relations between persons who share a protected characteristicand those who do not.

This is known as the Public Sector Equality Duty (PSED).^[215]

The Scottish Parliament's power to legislate on equalities is limited, as equal opportunities are generally reserved to the UK Parliament. For example, this means that the Scottish Ministers do not have the power to introduce a protected characteristic that has the same status as the protected characteristics in the Equality Act 2010.

The Scottish Parliament also does not generally have the power to legislate on employment and industrial relations, which is reserved to the UK Parliament in the 1998 Act.

Although the subject matter of the Equality Act is largely reserved, Scottish Ministers have used their available powers to support compliance with the PSED by placing detailed requirements on Scottish listed authorities through the Equality Act 2010 (Specific Duties) (Scotland) Regulations 2012 (SSDs).

The SSDs support Scottish listed authorities to improve performance of the PSED by requiring them to: report progress on mainstreaming equality; propose and publish equality outcomes; assess policies and practices from the perspective of equality; and publish employee information on pay and occupational segregation.

Responsibility for oversight of compliance with the 2010 Act, including compliance with the SSDs, rests with the Equality and Human Rights Commission (EHRC). The EHRC has issued guidance on how the SSDs should be applied in practice.

Our commitment to at least halve the disability employment gap to 18.7 percentage points by 2038 (from 37.4 percentage points in 2016 baseline year) aligns with the intention and ambitions of both the Equality Act and the CRPD.

The Equality Act requires employers to provide reasonable adjustments to disabled employees. We are taking action to improve the recruitment and retention of disabled people. This has included, for example, establishment of a dedicated Workplace Adjustments team, and introduction of an Employee Passport.

One reasonable adjustment that may be particularly beneficial to many disabled employees is flexible working. Whilst we cannot place a legal requirement on employers to provide this, given that the subject of employment and industrial relations is reserved to the UK Parliament, we are encouraging flexible working arrangements through our Fair Work policy approach with employers.

If a person has a disability, illness or health condition that means they need support to do their job that is over and above a 'reasonable adjustment', they may be eligible for support through the Access to Work scheme, which is run by the UK Government's Department for Work and Pensions.

Where someone is considered disabled under the 2010 Act, employers must also provide reasonable adjustments during the recruitment processes.

The Equality Act also enables employers to make use of positive action in relation to recruiting and promoting people with protected characteristics. Additionally, it is not unlawful for an employer to treat a disabled person more favourably in comparison to a non-disabled person, for example guaranteed interview schemes for disabled applicants.

What can we do about it?

We are simplifying the employability system through the implementation of No One Left Behind.^[216] It has a crucial role in achieving the vision for economic transformation and tackling child poverty; and aims to deliver a system that is more person centred, tailored and responsive to the needs of people of all ages who want help and support on their journey towards and into work. In particular, No One Left Behind aims to support people with health conditions, disabled people (including neurodivergent people and people with learning disabilities) and others who are disadvantaged in the labour market.

Whilst employment and industrial relations is generally reserved to the UK Parliament to legislate on, under the 1998 Act the Scottish Ministers have power to put in place arrangements to assist disabled people and people at risk of long term unemployment who are in receipt of reserved benefits to select, obtain and retain employment. In the case of those at risk of long-term unemployment, the assistance must be provided for at least a year.

In the absence of powers to amend employment rights and industrial relations legislation, we are taking a strategic approach and using the levers we do have available to promote Fair Work practices across the Scottish economy. The actions we will take to progress this agenda are set out in our refreshed Fair Work Action Plan.^[217] This incorporates actions on tackling the gender pay gap, the disability employment gap, and is complemented by our Anti-Racist Employment Strategy^[218].

Actions relating to disabled people's employment include:

• Investing almost £1m into our Public Social Partnership, which is working to improve the recruitment and retention of disabled people by developing and testing support for employers.
• Delivering all-age, person-centred, tailored employability services to those further from the labour market, including disabled people and those with health conditions, through a combination of locally designed services (No One Left Behind) and our national employment service (Fair Start Scotland).
• Providing tailored pre-employment and in-work support, which are both entirely voluntary with no threat of social security sanctions. This includes the provision of specialist support through either Supported Employment or Individual Placement and Support.
• Reviews of Individual Placement and Support and Supported Employment. Review recommendations are being taken forward through the next phase of development of our employability services.
• Establishing a Scottish Access to Work Stakeholder Forum, led by a Disabled People's Organisation, to engage and provide direct input to DWP.
• Application of Fair Work First^[219] principles to public sector spend including action by employers to create a more diverse and inclusive workplace. Since 2019, this has been applied to over £4bn of public sector spend.

In terms of the visibility of people with learning disabilities and autistic people in the data reporting under Fair Start Scotland, we have mainstreamed this through the recently published Employability Shared Measurement Framework^[220]. The Framework covers activity under the No One Left Behind approach. This data will allow us to better measure the reach of our services for people with learning disabilities and autistic people, and the opportunities and outcomes we are supporting them to access.

In line with our commitment to person-centred services, the experience of users is a critical measure of success. As part of our programme of evaluation work outlined above we are considering opportunities to evaluate the experiences and outcomes of autistic people and people with learning disabilities where possible.

As discussed in the introduction, we are also reviewing the PSED in Scotland and intend to deliver on two key regulatory changes - revising the current pay gap reporting duty to include reporting on ethnicity and disability pay gaps, and, introducing a new duty on listed public bodies which will seek to ensure inclusive communication is embedded proportionately across their work when they are communicating with the public.

By extending the current requirement for pay gap reporting to disability and ethnicity, we believe that this can encourage public bodies to take more effective action on equality issues affecting their disabled and ethnic minority staff. Following a public consultation^[221], we found that most of the respondents were largely in agreement (93%) that listed authorities should publish ethnicity and disability pay gap information.

Whilst we think that pay gap reporting is vital, some stakeholders have suggested that it has some limitations. It is thought that reporting statistics alone can be of limited value without contextualising the data, as this would highlight only part of the story. We are therefore considering this feedback as we take forward reforms, to ensure that meaningful change is achieved.

Regulation 11 of the SSDs provides that "In carrying out its duties under these Regulations, a listed authority may be required to consider such matters as may be specified from time to time by the Scottish Ministers." We are exploring how we might use this power to highlight issues which would have an immediate impact on public bodies' progress in equality mainstreaming, such as making more effective use of intersectional equality data in policy making.

What can the LDAN Bill do?

Disabled people face some of the most persistent labour market barriers, which is why we have committed to at least halve the disability employment gap by 2038. We agree that more needs to be done to support people with learning disabilities and neurodivergent people to access fair and sustainable employment, particularly in light of the available data which suggests these groups achieve some of the poorest labour market outcomes, even compared to wider disability groups.

However, given the work that is currently ongoing, and our limitations on changing the law in this area, we are not currently proposing any legislative changes. Instead, we will explore the following in order to promote and encourage more inclusive approaches:

• Under our 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. We can highlight 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: we are taking forward the Review of Supported Employment within Scotland,^[222] 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.
• We will review 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 we are collecting and reporting data in a consistent way.