It is common knowledge that disabled people have a tough time at work throughout the developed world. In Britain, in theory, the law (Equality Act 2010) protects disabled people against discrimination in employment, but in practice it is a different story. Yes, a British disabled person can take a case to an Employment Tribunal and sue the employer for discrimination, but if they do they are likely to lose. Looking at over 750 judgments in England and Wales between 2015 and 2017, we found that less than a ﬁfth of all cases that went to the first stage (a preliminary hearing) were successful. At the final stage (a full hearing) a claimant is almost three times more likely to fail than to succeed.
Our research explores why this occurs and we found several reasons. First, many judges make restrictive judicial decisions, for instance on the time period necessary to bring a claim (3 months). Woe betide the person who waits more than three months from when he/she experienced discrimination! Judges can extend the time limit where it is ‘just and equitable to do so’, but in practice they rarely do, choosing not to exercise their discretion.
Second, there are complex legal tests that need to be met. British law has a strict test a person must meet to prove they are disabled. Also, the employer can get around this by saying that they did not know the employee was disabled. We found that employers were more likely to use this defence, and to succeed in that defence, where the claimant had a mental health impairment compared to claimants with physical and/or sensory impairments.
After proving disability, there are various types of disability discrimination that can be claimed. For instance, claimants might argue that they suffered discrimination because an employer did not provide a reasonable adjustment and/or because they suffered direct or indirect discrimination, or because they were harassed because of their disability.
Without a lawyer, a claimant may well struggle, but often claimants cannot afford legal representation as there is no legal aid. In contrast the employer often has deep pockets and thus can afford to pay for a lawyer. Analysing this further, we found that employers were twice as likely to have legal representation than claimants. To put it another way, claimants were twice as likely to lose their case if they represented themselves.
Third, disabled claimants who simultaneously brought a claim for another type of discrimination, such as age, gender or race, were more likely to fail than claimants who alleged that the only ground of the discrimination they had suffered was disability.
So what about the other side of the picture? What does not seem to have any bearing on success or failure? Our research shows that success does not depend on the gender of the claimant, although more disability discrimination claims were brought by men than women. Also, success was not related to the type of impairment (physical, mental, sensory, learning). Nor was it related to whether the claimant worked in the public or the private sector. This is despite the fact that, in Britain, only the public sector has an additional duty to be proactive and advance equality of opportunity.
To summarise, British disabled workers are more likely to fail than to succeed when they take a case to an Employment Tribunal. Moreover, failure is particularly associated with the stringent legal tests claimants have to navigate to show they have a disability, with restrictive judicial decisions over time limits, and with the fact that claimants are much less likely to have legal representation than employers.
How can we make things better?
- Give support! Grant legal aid to ensure that disabled people can secure legal representation in the Employment Tribunal. This would cost the Government money, but would significantly help disabled people secure access to justice.
- Extend the clock! Increase the time limit for making a disability discrimination claim from three months to at least to six months, in line with British equal pay law.
- Rewrite! Consider revising the definition of disability to reflect the approach taken by the Americans with Disabilities Amendment Act.
- Educate! Address the stigma around disability generally and mental health particularly.
- Hire! Adopt the US practice of requiring federal agencies to hire a certain proportion of disabled people or, as in France, require organisations, whatever their sector, to employ a quota of disabled people or pay a levy.
Investigate! Promote further research about factors that affect decisions by Employment Tribunals to improve the chances of success for all workers.
Laura William, Birgit Pauksztat, and Susan Corby. “Justice obtained? How disabled claimants fare at Employment Tribunals” in Industrial Relations Journal 2019
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