Can International Human Rights Law Help Restore Access to Justice for Disabled Workers?

Abstract

The research literature indicates that legislative changes in recent years, including the introduction of tribunal fees, have made it harder for workers in general to enforce their rights under UK employment laws. Drawing on the author's qualitative study, conducted in 2015 and with information from 265 participants, this paper finds that these legislative changes could be having disproportionate adverse impacts on disabled workers. Of particular note, fees had deterred substantial numbers from submitting discrimination claims; and it appeared that this reluctance to take legal action had in turn emboldened some employers to commit what might have been found to constitute unlawful acts if taken to tribunal. The paper goes onto consider whether these adverse impacts on disabled workers could render fees unlawful under UK and European equality and human rights law and/or could entail violations of rights under the United Nations Convention on the Rights of Persons with Disabilities. The paper concludes that the intent behind UK laws might (in relation to the lawfulness of fees) have been frustrated in the domestic courts and that the impact of any future successes in the domestic courts, or under international law, might be dependent upon public opinion and political expediency. The paper also briefly compares developments in Britain with developments in neighbouring and other comparable jurisdictions.

What Has Limited the Impact of UK Disability Equality Law on Social Justice?

“…The author's qualitative Reasonable Adjustments Study (RAS) was undertaken between April and November 2015; and ran alongside his study of the enforcement of equality law, which is reported elsewhere in this journal [42]. The sources of data are shown below.…”

“…Identified relevant external (to the organisation) factors included the economic environment and social norms; and, the focus of the rest of this paper, the wording and interpretation of the Reasonable Adjustments Duty and other employment and equality laws, and government flexible labour force policies, which are taken to include employment and equality law deregulation and welfare reform. As enforcement of employment and equality law is the subject of a separate paper [42], it is not dealt with further below.…”

“…Some of these problems with the definition might suggest either the need for a less restrictive definition of disability or no definition at all. Indeed, it might be that a less restrictive, more social model, definition is already required in relation to the Equality Act (EqA) 2010 and reasonable adjustments, as the result of the findings of the Court of Justice of the European Union in Jette Ring and Skouboe Werge (e.g., [42], p. 14; [66], p. 6), and the 2014 Advocate General's opinion in Karsten Kaltoft v the Municipality of Billund, Case C-354/13 ([66], p. 7). In particular, such a definition might require a focus on the adverse impact of an impairment in interaction with external barriers, including, for example, working arrangements.…”

“…For example, one woman stated "After providing the initial basics, all subsequent needs were ignored..." Of course, the organisation might fall foul of the law as a result of the failure to make reasonable adjustments that an assessment might have identified, bearing in mind, for example, that the duty to make adjustments is on the employer (Cosgrove v Caesar Howie [2001] IRLR 653) [72] and is ongoing. However, this might be of little use to workers who in general will be reluctant ( [42], p. 6) to take a case to tribunal.…”

“…In addition, the places where the surveys were publicised (including being tweeted by disability rights activists) might be assumed to have increased the likelihood of attracting respondents who felt that existing legal protections should be strengthened. Addressing threats to validity included, in particular, as in the enforcements study [42], "member checking" (e.g., [51], p. 322); searching for "discrepant data" (e.g., [43], p. 258); and individual triangulation (e.g., [52]). As regards member checking, this involved sending draft interpretations of their responses to 55 participants and adjusting the interpretations in the case of the 17 who suggested misunderstandings.…”