Monday, 12 March 2012

Workfare: Privacy? What Right to Privacy?

One of the comments on my piece on Workfare, the DWP and Duty of Care raised a further alarming prospect, that DWP believe their right to impose Workfare takes precedence over a disabled person's legal right to privacy regarding their medical records.

The comment pointed out that a FOI request at the 'What do they Know' site contains the following statement by DWP:

Section 3 of the Social Security Act 1998 allows DWP to reuse personal information relating to social security and employment and training for another social security function. This includes reuse by persons providing services to DWP, such as Work Programme providers, where acting as the DWP's data processor.

In addition,
in order to carry out their functions under the Employment, Skills and Enterprise Scheme, the Work Programme provider may need additional personal information from the claimant. If the claimant does not wish to provide this information it may be the case that, with the provider, they can investigate ways in which they can still participate in the Scheme,  without the additional information being provided.

However, there may
come a point when the Work Programme provider becomes concerned that the claimant’s withholding of information potentially amounts to non-participation in the Scheme. If this is the case, they will refer the matter to a decision maker who will consider all the facts of the case, including any good cause issues the claimant wishes to raise, and determine whether the claimant has failed to participate. If the decision maker considers that the claimant has failed to participate, their benefit will be sanctioned.

Now the first paragraph is disturbing enough, but clearly falls within the legal powers granted to DWP, however the second and third paragraphs are particularly troubling, both in general and specifically for disabled people, as they seem to show the DWP taking the position that they can insist that any information they feel relevant is provided under threat of sanction, even where that insistence is counter to a disabled person's rights under the Equality and Data Protection Acts..

A disabled person when considering an employment position is forced into the iniquitous position of having to decide whether or not to reveal their disability. Declare your disability and you have the protection of the Equality Act when requesting a reasonable adjustment, but declaring your disability also opens you to the threat of discrimination. Equally there may be considerable privacy issues wrapped up in information that could be relevant to Duty of Care issues, as examples mental health issues, continence and epilepsy all draw considerable negative opinions, if not outright discrimination, in contemporary society.

When we face a new job, disabled people face a whole additional set of decisions over and above non-disabled people: do we declare, if we do declare, then how much of the extent of our disability do we declare, and how widely do we allow that knowledge to be spread. The Equality Act and the Disability Discrimination Act before it provide specific protections for disabled people, we cannot be penalised for not declaring (though we have to declare to make the reasonable adjustment provisions enforceable) and we can insist that the details of our disability are not spread to people other than those we declare to. So for instance, I could declare my disability to HR, but insist that my line managers are told nothing more than that I am disabled and can legally request reasonable adjustments. If those provisions are breached. particularly in instances where that data is passed to other organisations entirely, then I can bring legal action against my employer for violations of both the Equality Act and the Data Protection Act.

The DWP statement above appears to attempt to subvert those rights, by stating that they can insist that information is provided to the Workfare provider, no matter that the Equality Act gives disabled people a right in law to insist that it is not, no matter that the Workfare provider is not an employer in any normal sense. Given the overwhelming disablism in recruitment decisions that disabled people face, forcing people to reveal details of their disabilities is actually going to undermine any chance of them getting a job out of the mandated assignment, the overwhelming advice from recruitment consultants is not to reveal disability until you have the written offer of a full time job in your hand. So DWP are actually shooting the whole point of the exercise in the foot by forcing declaration of disability. Worse than this, however, is the way it tramples over the right of disabled people to maintain privacy around the details of their disability. If I am being forced against my will into some utterly inappropriate position,  with an utterly inappropriate company, a company whose data protection measures I have no confidence in and with whom I have no hope of a job at the end of it (and we've seen plenty of those reportedly involved with Workfare), then there is no way that I am willing to provide them with the full details of my disability, and I will be far from the only disabled person to feel that way. It will particularly be a problem for people with Mental Health issues, who are likely to be particularly frightened of being forced to declare details of their disability, and where there is already considerable evidence of them being deliberately targeted as 'an easy mark' for sanctions by JCP staff.

Workfare alone is bad enough, but to combine it with an contempt for the right to privacy of the people with most to lose from privacy and data protection violations, and to do so in apparent contempt for the protections granted by the Equality Act and the Data Protection Act, suggests that this is just one more piece of evidence that DWP consider themselves above such menial issues as the law, particularly laws relating to equality and discrimination.


  1. Great Piece. I actually had an interview today was going very well until i mentioned my disabillity, then all of a sudden, well you know the rest.
    I dont mind sharing if you want a full account

  2. Is this to do with the DWP trying to escape their responsibility for the welfare of claimants, who they force to work unpaid, sustaining or causing an injury whilst in the workplac, due to a disability which is known to the DWP.

    In their response to the FOI request below the DWP appear to be putting the onus of responsibility onto the organisation benefiting from the slave labour. But in order to assess the risk in the workplace, under the H&S legislation, they need to know about the specific disability or health problem. Now if the slave wont discuss his medical condition and the DWP need his permission to pass on details this causes a problem doesn't it? Under normal circumstances someone at a job interview might be willing to discuss the effect of their disability on safety in the workplace so this problem wouldn't arise, but this person is being forced into slave labour and, so it appears, forced into discussing his private and confidential data in order that he can be exploited.

    "The Work Programme provider will seek to agree the most appropriate course of action to help an individual. Whilst this may involve work placements, it will not necessarily be the most appropriate option for everyone. If however, a work placement is considered appropriate then the responsibilities of the individual, the provider and the organisation accepting the placement must be discussed and made clear (including liability).

    The Work Programme provider organisations are required under the terms of Department for Work and Pensions (DWP) contracts to comply with UK law and any mandatory legislation including compliance with their duty of care under the Health and Safety at Work Act 1974."

  3. Anonymous 1, A practical example of the discrimination we face might be useful for putting this into context, so if you really don't mind, and it doesn't force you to reveal more than you would want to privacy-wise, then I think it would be interesting to see it.

  4. Anonymous 2, it all links together, if DWP want to force someone to work against their will, or in our case disregarding what our disabilities allow, then they are going to have to force the exchange of information that normally happens at the start of a job, but for disabled people there is more information to consider, and the privacy concerns are far greater. To draw a parallel, it would be equivalent to DWP forcibly outing an LGBT Workfare candidate to the Workfare contractor.

    You mention their legal obligations, the ones I'm concerned are going to be trampled underfoot are the Equality Act 2010, and the Data Protection Act 1998