by anonymous
Initial thoughts
This is a brief overview of potential punitive claims in relation to discriminatory conduct, or other failures of disabled people by public authorities. This cannot be taken to be exhaustive, and is not offered as matter-specific legal advice. I also note that discrimination is not a field that I specialise in, and think it is important for you to get more specialist advice about this situation. However, I hope it will provide a useful guide for considering next steps, and whether you want to contact organisations that do more specialised work in this area. If you want, I can try to signpost you to people who may be able to assist further, although I cannot guarantee any particular outcome, of course.
Having considered the legal mechanics of this kind of claim in a bit more detail, I think that my specific view reflects my general view about this sort of problem: the law is likely to be a poor tool for achieving systemic change, and the most effective way to achieve change is through organising and campaigning, supported by legal challenges which are calculated to have the greatest effect for the campaign.
In addition to the specific challenges around brining these kinds of claims, there are two main reasons why I say this:
Sovereignty of Parliament
The British constitution is based on the idea that, if an Act of Parliament says that something is the law, it is the law. Even if it is demonstrably incompatible with fundamental rights, the courts can do little but declare this incompatibility.
While the commitments of the UK government under various EU treaties in recent decades have modified this position to a limited extent, fundamental principle that the law is what Parliament says the law is, did not change. I also note the imminent end of the Withdrawal Agreement.
The nature of our courts
The courts see their role as primarily functional: trying to reach the best decision in each specific case, rather than aiming to achieve justice more broadly. They almost invariably see attempts to secure justice in a broader sense as a political issue.
They are also bound, in their interpretations by the history of precedent. Precedent codifies the prejudices and values of a particular sector of society, over time, and embeds this in our legal system. Hence there is a fundamental conservatism to the system. Even at Supreme Court level, judges are under great pressure to make rulings that are compatible with past decisions and precedent, because not doing so places the whole system in jeopardy.
Hence, my view is that, in order to achieve real change, and also get whatever measure of retributive justice can be achieved against failing organisations, the most effective primary focus would be on work that draws attention to level of harm that is caused by subjecting a person with a significant disability to processes that this difficulty specifically causes them to struggle with.
Claims under the Equality Act 2010
Section 118 – Time limits
- (1) Subject to sections 140A and 140AA proceedings on a claim within section 114 may not be brought after the end of—
- (a) the period of 6 months starting with the date of the act to which the claim relates, or
- (b) such other period as the county court or sheriff thinks just and equitable.
[some text omitted]
- (6) For the purposes of this section
- (a) conduct extending over a period is to be treated as done at the end of the period;
- (b) failure to do something is to be treated as occurring when the person in question decided on it.
Hence, in order to bring a claim, it must either be brought within 6 months of a discriminatory (see below) act, during an extended period of discriminatory conduct, or within 6 months of such a period ending. The court can extend this time limit, but courts are generally very reluctant to do so, as “certainty” about liability is something that the legal system regards as being very important.
The court would have to decide whether a series of events amounted to a single period of discriminatory conduct. In most cases, I think it is unlikely that multiple instances of discrimination by different parts of an organisation will form a single period of conduct, although this is going to be highly dependent on the particular facts. In some cases I think it might be argued that an initial act of discrimination has given rise to ongoing discrimination because it has an ongoing discriminatory effect of the handling of the individual. This is a technical point that I do not believe I am qualified to address in full. Please see my thoughts in the summary, however.
Sections 140A and 140AA relate to cross border disputes, and so they would not have an effect on time limits here.
Section 119 Remedies
- (1) This section applies if the county court or the sheriff finds that there has been a contravention of a provision referred to in section 114(1).
- (2) The county court has power to grant any remedy which could be granted by the High Court—
- (a) in proceedings in tort;
- (b) on a claim for judicial review.
[some text omitted]
- (4) An award of damages may include compensation for injured feelings (whether or not it includes compensation on any other basis).
- (5) Subsection (6) applies if the county court or sheriff—
- (a) finds that a contravention of a provision referred to in section 114(1) is established by virtue of section 19, but
- (b) is satisfied that the provision, criterion or practice was not applied with the intention of discriminating against the claimant or pursuer.
- (6) The county court or sheriff must not make an award of damages unless it first considers whether to make any other disposal.
A “provision referred to in section 114(1)” includes discrimination by a provider of services or someone performing public functions. It does not include a failure to comply with the “public sector equality duty” described in section 149. Section 149 may be relevant in proceedings for judicial review, where the applicant is seeking to overturn a decision, but it is not relevant in claims seeking punitive measures.
If indirect discrimination (see below) is found without the intention to discriminate, then the court must consider not making an award of damages, and taking another step instead. The most obvious alternative would probably be ordering the defendant to end the discriminatory practice and undo the harm that has been done by it. If undoing the harm is not possible then damages might be seen as appropriate.
Hence a successful claim could have the effect of achieving change. However, the extent of this change would almost certainly be limited to the specific policy and its consequences: systemic effects will usually require a combination of (a) different challenges from different people and (b) campaigning for political change.
Types of discrimination under the Equality Act 2010.
Section 13 – Direct discrimination
- (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.
[some text omitted]
- (3) If the protected characteristic is disability, and B is not a disabled person, A does not discriminate against B only because A treats or would treat disabled persons more favourably than A treats B.
For there to be direct discrimination, it must arise “because of”, i.e. as a result of the existence of, or a belief in the existence of, a protected characteristic such as disability. If A would treat an abled person the same was in the same circumstances, it is not direct discrimination, even if the circumstances would
never have arisen if there were no disability. However, please see below for information about discrimination arising from disability under section 15, which addresses this issue.
Section 19 – Indirect Discrimination
- (1) A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B’s.
- (2) For the purposes of subsection (1), a provision, criterion or practice is discriminatory in relation to a relevant protected characteristic of B’s if
- (a) A applies, or would apply, it to persons with whom B does not share the characteristic
- (b) it puts, or would put, persons with whom B shares the characteristic at a particular disadvantage when compared with persons with whom B does not share it,
- (c) it puts, or would put, B at that disadvantage, and
- (d) A cannot show it to be a proportionate means of achieving a legitimate aim.
Hence unlawful indirect disability discrimination can arise where a disabled person is disadvantaged, compared to an abled person, by some rule, requirement, act or procedure, even if the person discriminating would not treat an abled person differently.
However, this is not treated as unlawful discrimination if it can be shown that it serves a legitimate aim and that it is a proportionate way of achieving it. What this means is discussed below.
Legitimate aim
A legitimate aim is a real, rather than pretended or trivial, reason for doing something.
Examples of legitimate aims include:
• the health, safety and welfare of individuals
• running an efficient service
• requirements of a business
• desire to make profit.
Proportionate
For something to be proportionate requires it to be an “appropriate and necessary” means of achieving a legitimate aim. “Necessary” does not require it to be the only possible way of achieving the aim; only that the aim could not be achieved by less discriminatory means. Determining if something is proportionate requires a court to balance the harm done against the benefit to the legitimate aim.
Something which causes great harm will be harder to justify something which does only marginal harm. Similarly, the more important the aim, and the more useful the step taken is to achieving that aim, the easier it will be to justify any discrimination as proportionate.
While cost cannot be the only justification, cost can be part of the justification. Hence, in the case of public bodies, cost can be used to support the claim that a measure with some justification is proportionate. Hence a court could find that an aim could not be achieved by less discriminatory means using those means would be financially impractical. Example of a proportionate means of achieving a legitimate aim
The fire service requires all job applicants to take a number of physical tests. This could be indirect discrimination because of age or disability. However, this can probably be justified. The reason for the test is to make sure candidates are fit enough to do the job and ensure the proper functioning of the fire service. This is a legitimate aim.
Making candidates take physical tests is proportionate because there is no other reasonable way of achieving the outcome. While it may be possible for technical solutions to reduce the necessary level of physical fitness needed, and so reduce discrimination, not implementing these could be justified if they would add expense that would significantly impair the overall delivery of the fire service.
Section 15 – Discrimination arising from disability
- (1) A person (A) discriminates against a disabled person (B) if—
- (a) A treats B unfavourably because of something arising in consequence of B’s disability, and
- (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.
- (2) Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability.
Hence it can be unlawful discrimination to treat someone worse because of something they have done as a result of disability, as long as the person treating them worse knew, or reasonably should have known, that the person had the disability. This would, for example, include removing access to services or similar on the basis of behaviour that arises as a consequence of a disability.
It will be necessary to produce evidence that any factor leading to unfavourable treatment was “in consequence of” the disability. This would usually mean medical evidence showing that, if it were not for the disability, the cause of the unfavourable treatment would not have arisen.
Again, worse treatment can be justified where it is a proportionate means of achieving a legitimate aim. Please see above.
Negligence
It is also possible to bring a claim in negligence against a public body.
Negligence may exist where a person with a duty to take care about how to perform a particular action or course of conduct has either done something a reasonable person would not have done, or failed to do something that a reasonable person would have done. If, as a result of this, harm has arisen, which
a reasonable person would have foreseen, then the person with the duty is liable for that harm.
A “reasonable person” is the averagely imperfect person, with the average degree of foresight, rather than someone of highly unusual ability or skill.
In a profession requiring a particular skill or expertise the “reasonable person” will be a member of that profession, with the average foresight and level of ability one might expect from such a person.
It is necessary to demonstrate the harm caused, and also to show the causal connection between the negligence and the harm. This will usually be extremely difficult where there is no direct physical or financial effect.
Claims for negligence must usually be brought within 6 years. The time limit is 3 years in cases of personal injury.
Summary
Time limits
These are short, and so it is important to respond to the most recent issues,rather than historical ones. There are circumstances where issues will be seen as ongoing, but it is, in nearly all cases, going to be fundamental to link any claim to events that happened in the last 6 months.
Direct discrimination
Claims against public bodies for direct discrimination against disabled people are unlikely to succeed in the absence of clear and powerful evidence that an abled person would have been treated better in identical circumstances. Because this is dependent either on very overt discrimination, or on proving a counterfactual proposition, it is, sadly, extremely hard to produce in the majority of situations.
Discrimination arising from disability
Claims against public bodies for discrimination arising from disability will, I think, often be more viable. Key points to consider are:
- These claims are likely to be highly dependent on medical evidence to show the nature of the disability and the way it affects the disabled person, but may also take into account other evidence showing the impact of the disability on the life of the disabled person.
- It is important to clearly identify why the worse treatment was not a proportionate means of achieving a legitimate end. Usually this will be about showing that the means were not proportionate, rather than showing that the end is not legitimate.
- Sadly, it is the case that acts that give rise to discrimination in real terms may not cause a public body to commit discrimination arising from disability in legal terms. In particular, it is frustrating but unavoidable that finances may be used as part of a justification: hence funding decisions made by the government that mean it would be prohibitively expensive for organisations to do better may be part of a legal justification for them not doing so.
Indirect discrimination
Claims against public bodies for indirect discrimination are also more likely to be viable than direct discrimination. Key points to consider are:
- It is vital that any claim sets out clearly and specifically what acts or policies have caused this discrimination, and shows that these policies either had no legitimate aim or cannot be seen as proportionate means of achieving those aims.
- Any claim would have to demonstrate the disadvantage that has arisen because of the discrimination.
- Similarly to the above, it is frustratingly the case that policies and acts that give rise to discrimination in real terms may not cause a public body to indirectly discriminate in legal terms, again, including because of decisions that are partly justified by reference to cost.
Negligence
Because of the requirement that any harm be reasonably foreseeable, and the fact that the standard of care is only that of the average or “ordinary” person/professional, I think that negligence claims are unlikely to be viable, for these sorts of issues, at least in the significant majority of cases where an Equality Act based claim would not be viable.