Disability reporting in the UK: time to act?

Jennifer E. Engen

Written by: Gemma Taylor, Lucy Hendley, Tom Heys, Lewis Silkin

The UK government is considering requiring all large employers to report on the proportion of disabled people in their workforce.

Far fewer disabled people are in employment compared to non-disabled people: disabled people have an employment rate that is 28.4 percentage points lower. The government acknowledges that this disability employment gap is frustratingly high and has published a consultation on the introduction of disability workforce reporting as one measure to address the issue. The consultation (available in PDF here, and in other accessible formats here) runs until March 2022.

Background to the current voluntary framework and the disability reporting proposal.

In 2017, the (then) Prime Minister commissioned an independent review into mental health at work. The report ‘Thriving at Work’ was published later that year and the report made broader recommendations covering more than just mental health. It recommended that employers begin voluntarily reporting on the proportion of staff with any type of disability.

The Department of Work and Pensions (DWP) subsequently developed a voluntary reporting framework. The voluntary reporting framework helps organisations to record and voluntarily report information on disability, mental health and wellbeing in the workplace. It is aimed at employers with 250 or more employees, but the framework can be used by any employer. It is a mandatory requirement for any Disability Confident Level 3 employer.

The success of the voluntary reporting framework has been limited. According to a CIPD poll, only 21% of employers were aware of the framework, with 54% of these stating that they had no plans to adopt it.

Given this lack of uptake, and the success of other transparency policies such as gender pay gap reporting, the government committed to launching a consultation on mandatory disability reporting. This was published on 19 December 2021.

Potential benefits of disability reporting

Recent years have seen much discussion about the importance of inclusion at work and many employers have taken significant steps to improve their understanding of issues around race and gender. Disability is an area which has historically been lower down the diversity priority list, however, and organisations are frequently uncertain of the best approach to support their workforces in this regard. There are many reasons for this situation, but one is a misconception about who we are talking about. Being ‘disabled’ can often be viewed as something affecting very few of us, yet the statistics of those declaring themselves to have a disability tell a different story; there are at least 14 million disabled people in the UK and over 4.4 million currently in work. Given that there is a general lack of understanding about how wide the definition of ‘disability’ can be, the real number of people who could be classified as ‘disabled’ is likely to be much higher.

For many disabled workers, barriers in the workplace may mean that they are prevented from working at all, or that they are working in a way which leaves them feeling unsupported. Frequently, they face inaccessible physical features, inadequate technology or simply a lack of understanding about how their condition may, for example, require a slightly different work arrangement. By encouraging employees to declare their disability or condition and monitoring how many disabled workers they employ, employers can start to develop a greater understanding of what more their organisation needs to do, and can begin to analyse the internal processes that work and those that require improving.

Challenges of disability reporting

Despite the potential benefits, disability reporting raises significant challenges. Some of these are considered in the consultation document.

Definition of disability

The consultation asks whether there should be a standardised approach to data collection and puts forward two different definitions of ‘disability’. These are:

  • Do you consider yourself to have a disability or a long-term health condition (mental health and/or physical health)? This is the wording used by the voluntary reporting framework.
  • Do you have any physical or mental health conditions or illnesses lasting or expected to last 12 months or more?
  • And, does your condition or illness, or any of your conditions or illnesses, reduce your ability to carry out day-to-day activities?

This is the wording used by the Government Statistical Service.

These two definitions differ in important ways. The first definition explicitly encourages employees to ‘self-identify’ so may encourage individuals to tick the box where they consider themselves, for example, to be neuroatypical but do not have a formal diagnosis. The second definition more closely matches the definition in the Equality Act 2010 but avoids reference to ‘disability’. This may encourage some individuals to tick the box if they have a significant health condition but do not feel they are ‘disabled’, for example people with diabetes, musculoskeletal conditions or people with a diagnosis of autism spectrum disorder who may consider themselves to be ‘different’ rather than ‘disabled’. On the other hand, the emphasis on impact on daily life may exclude people who feel that they are successfully managing their health condition.

It is sensible to try to find standardised wording. Any reporting regime is only effective where all employers are following the same set of rules so that like can be compared with like. Many employers would welcome clear direction over the appropriate language to use.

There is already a very specific legal definition of ‘disability’ in the Equality Act 2010, so one option would be to design a question exactly matching that definition. It is ultimately up to an employment tribunal to decide if an individual meets the legal definition, however, so a self-declaration is not necessarily reliable. In any case, the underlying purpose of the data collection is not simply to understand which employees may have a protected characteristic but is surely also about trying to gain basic insight into the accessibility of the workplace and whether there are barriers to employment.

The question should perhaps focus on whether the individual has any kind of disability or health condition that requires changes to the job or the way it is done, thus giving employers a better understanding of who is working for them, what their needs are and what might be holding them back. To gain deeper insight into the diversity of the workforce and address wider aims around inclusion and authenticity, employers may also wish to ask if individuals have any long-term condition or identify themselves as neuroatypical even if they do not consider themselves to be disabled or as having any particular need for support.

It may be sensible, therefore, to ask multiple questions but, as we have seen when exploring ‘class’ reporting (and discussed here) the questions we ask are so important in enabling us to understand the data coming out of the answers.

What other data to report

The consultation asks whether there are any other statistics that could be reported, along with the proportion of people identifying as disabled.

Reporting only the proportion of disabled employees in a workplace will not give any information about the relative spread of those employees. A workplace with 10% disabled staff may not actually be more inclusive than a workplace with 7% disabled staff if all those staff are in low paid roles with no opportunity for progression. This suggests that there may be a case for disability pay gap reporting or for collecting additional data around, for example, job level or performance rankings.

How do we encourage people to declare their disability?

Employees cannot be compelled to declare disabilities or health conditions, but if not everyone is willing to do so then employers will face the problem of incomplete data. Organisations that are calculating their ethnicity pay gap on a voluntary basis ahead of the possibility of eventual legislation currently face this challenge. Getting people to declare disabilities is likely to be even harder. Disability is often invisible and many people will not have been open about their health conditions at work.

Why is it that so few disabled people declare their disability? There can be a number of contributing factors. Many people are unfamiliar with the definition of ‘disability’, and therefore do not consider themselves to be disabled, as discussed above. New employees may be reluctant to disclose their condition if they have had a bad experience of doing so with a previous employer. For existing employees, often it can come down to fear: fear that disclosing a condition or disability will lead to stigma and a change in attitude towards them; fear of negative repercussions for a person’s work relationships or career prospects.

So, how can employers encourage their workers to disclose their disability? Developing a culture of openness and understanding is crucial. What does your website say about your attitude towards disability? If an employee wanted to know whether their disability could be accommodated at your organisation, that is the first place they will look. There are also a number of steps an organisation can take towards creating an environment where employees feel able to be open about their disability or health conditions. A significant aspect of this is demonstrating to employees that they are not alone: encourage your leaders to share their own experiences of health conditions, develop training sessions raising awareness of disability and make sure that health and wellbeing is firmly on the agenda at every stage. The CIPD has recently published useful guidance which refers to the need to build a culture of psychological safety, reassuring employees that disclosure will not negatively affect their position or career.

Anonymity

Should data collection be done by anonymous survey or on an open basis, for example by asking individuals to complete information about their profile on an HR system? This question is not directly addressed by the consultation but it would need to be resolved before employers could implement any reporting scheme.

There are various practical, data protection and employment law issues to consider, including the willingness of employees to declare their health conditions on an open basis and the potential triggering of legal liabilities and responsibilities were they to do so. Liability for certain disability discrimination claims (e.g. failure to make reasonable adjustments) arises only if the employer knew or should have known about the employee’s disability, and any declaration identifying an employee as potentially having a disability or long term health condition may be used as evidence in a future claim that the employer had sufficient knowledge of the disability, even if the details are confidential and shared with a restricted group of people.

Again, the answer to this dilemma may turn on the underlying purpose of collecting the data. Employers could collect data on the proportion of their workforce identifying as disabled on an anonymous basis but, as we discuss above, this single statistic only takes you so far. To really understand the potential needs of the workforce and whether the environment is genuinely inclusive, employers would need to collect more information on an open basis, or at least information that could be disaggregated by, for example, job level. The Equality and Human Rights Commission Code of Practice on Employment already encourages employers to do all that they can reasonably be expected to do to find out if a worker has a disability and employers cannot support employees to work successfully if they do not know what their needs are.

What are leading employers doing?

Significant, positive initiatives have been developed in recent years. Over 20,000 businesses are signed up to the Disability Confident scheme, encouraging employers to put measures in place which break down the barriers for disabled people. The Valuable 500 (a community of 500 CEOs) puts disability firmly on the business agenda, recognising the value of the 1.3 billion people globally living with a disability. Businesses are and can be pioneers of significant change in society; perhaps as employers begin to more actively include disabled people in their recruitment drives and their business strategies, in turn we will see a greater case for increased disabled access in society as a whole.

Conclusion

The case for greater diversity is clear but the case for greater inclusion for disabled workers needs to catch up. With an ageing workforce, the need to support employees with disabilities and health conditions is going to become even more critical. An employer should, of course, make sure that the building housing its staff is physically accessible to a wheelchair user but that is just the tip of the iceberg. By understanding the wide array of conditions and needs, employers are better equipped to get the best out of their staff.

Employers often fear complex and expensive arrangements which can be detrimental to their business (although reasonable adjustments often cost nothing and support is potentially available through the Access to Work Scheme). Given the significant impact that Covid has had on our working lives over the last two years, isn’t now, however, the moment to reconsider our traditional ways of working and allow for conversations about alternatives, support and adjustments for all our staff – in turn, benefitting those disabled workers who have been disadvantaged by typical working patterns and routines?

For those reasons, it seems to us that there is a strong case for the introduction of disability reporting, potentially starting only with the very largest employers. This could begin with a basic mandatory question that can be completed anonymously, but for really meaningful data, employers may want to dig deeper.

A response to the consultation is due to be published by 17 June 2022.

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