Monitoring the Disability Discrimination Act (DDA) 1995 - Centre for ...

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■ If yes, was it for a reason related to their disability? ■ If yes, what was the justification? How confident were they from the outset, about their client’s chances of winning the case? And why? Did this perception change? And why? 9.1.3 Withdrawn or settled cases (section to be asked only in those cases) Cases withdrawn before a hearing Establish: Adviser/representative’s interpretation of claimant’s reasons for withdrawal. Examine, in particular: ■ How far withdrawal was a 'free choice' on the part of the claimant (eg where they discovered or decided that there was little chance of success, or that in fact they had no case under the Act), ■ How far it was constrained by external factors - eg financial concerns about the cost of taking the case; concerns or fears about the process itself; ■ How far it was constrained by personal factors (eg their own health). ■ (where adviser/rep is acting for claimant) Did they advise withdrawal? why?) At what stage did the withdrawal take place and why? (eg, before the planned hearing, after a directions hearing etc.) Settled cases Establish: 392
Timing of settlement (egbefore the planned hearing, after a directions hearing etc.) Circumstances of settlement: ■ Who initiated the settlement process ■ Who else was involved (adviser, legal rep, conciliator ) ■ Did interviewee advise their party to settle? why (or why not?) ■ Terms of settlement (handle question sensitively, and stress confidentiality); Check whether a confidentiality clause was involved in the settlement (if so, this might constrain the interview for fear of voiding the settlement agreement) Adviser/rep’s view on whether settlement outcome is satisfactory. 9.1.4 Heard cases What legal process was involved? Was it: ■ County court small claims procedure? ■ Ordinary procedures of the county court? or ■ High Court proceedings (unlikely)? Establish (or confirm) what the outcome was and any remedy or award made ? What were the most important factors which influenced the outcome of the case (positively or negatively)? do not prompt initially but we are looking for factors such as: ■ the role and quality of representation, advice or conciliation; ■ financial resources; 393
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Monitoring the Disability Discrimin
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Acknowledgements We would like to t
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2.2.4 Identification of potential P
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4.6 Respondents’ views on decisio
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7.3 Impact on respondent organisati
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treatment 308 9.3.3 Meaning of disc
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■ Access to justice, including ac
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epresentation that they ended up re
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are resolved without the need for a
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the outcome. The main factors ident
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if they were successful at tribunal
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or the Sheriff’s Court. The pauci
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ecause defendants tend not to dispu
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2. Introduction 2.1 Background and
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levels of all parties. ■ The char
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Key findings from the phase 1 and 2
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■ Applicants are less likely than
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definition of disability and the me
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industrial relations journals and s
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lawyers’ associations and societi
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of actual cases to date. ■ The re
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how the sample of interviews/case s
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Table 2.8: Part II case studies, by
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2.3 Key findings from the case law
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Other recent clarifications cover l
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employer to show that it was unreas
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and the impact of Part III cases on
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3.1.1 Dismissal cases Amongst the c
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An applicant had worked for a retai
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An applicant was not offered an int
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espondents, and their representativ
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“I always felt the guy with one l
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An applicant with depression and an
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the HR function was less clearly de
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etween this and the extent to which
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“In a sense it is quite naïve re
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their working environment. Financia
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over taking a case. Evidence The av
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potential applicants (ie people who
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An applicant working for a local au
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appeal initially would do less to w
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An applicant had meetings with the
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the case studies there were indeed
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cases were not in a position to use
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Note: There are two important diffe
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4.1.5 Withdrawn and settled cases
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One applicant involved in a less fa
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An applicant involved in a claim ag
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phonecalls and home visits. Some co
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expectations, conflicting medical e
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A trade union representative involv
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number of problems for representati
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An applicant with depression bringi
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An applicant pursuing a recruitment
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4.3.6 Procedural/technical factors
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espondents, who commonly attach a
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figure was a problem particularly f
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An applicant involved in a settled
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4.7 Conclusion To summarise, then,
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form of application is known as an
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IT1 arrived they were expecting it.
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In this section we look at some exa
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prohibitively expensive for many ap
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No knowledge of applicant’s disab
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However, some respondents were awar
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An applicant who was dismissed from
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There is no clear pattern in the re
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The vagaries of the tribunal proces
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Employment Code of Practice, DRC li
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applicants who had taken DDA cases,
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An applicant who is registered blin
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elieved that this contributed to th
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full tribunal hearing; thirteen cas
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Table 6.3: Outcomes, by applicant
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In our case studies, four out of si
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“At the end of the day I knew dis
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medical reports can become a barrie
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A lack of supporting witnesses was
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solicitor would have been better, a
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herself at the full hearing. One ap
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the way the tribunal handed and dec
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the chair makes a real difference,
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that depression was not taken serio
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An applicant received an award in e
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7. Impact of DDA 7.1 Introduction T
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substantial legal fees for advice o
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the outcome. For those who lost the
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Family and friends featured heavily
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Stress Many applicants, both those
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Impact of being defined as ‘disab
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whose cases were successful, though
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e there. A common theme to emerge d
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process of taking a case can have a
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A man with rheumatoid arthritis who
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epresentation. Although this partic
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The case studies provided, overall,
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A local authority involved in an on
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A local council was forced to settl
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The director of a small independent
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Cynicism Although many respondents
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“We’ve been trying really hard
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The HR manager for a university whi
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the lives of applicants and the run
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8. Part III Case Studies In this ch
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number of ways. Specifically a serv
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a particular factor was perceived b
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Intense feeling of humiliation Seve
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their own child but trying to make
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- failing to amend policies, proced
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Claimants’ awareness of rights un
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cases were never pursued. This is d
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active in disability rights or advo
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Act at the time of the incident eit
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A representative commented that she
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“It’s not like he never gets to
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The meeting appeared to be going we
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III cases than in Part II cases. Oc
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hearing and six had never been lodg
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equipment. Whether the investment i
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defendant or potential defendant wa
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large as in Part II cases. At the s
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Consequently, commentary on Part II
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she did have a physical impairment,
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detailed diagnosis of mental illnes
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Session confirmed that the tribunal
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almost exclusively by women (or men
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disabled person’ and that use of
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of the panel who experienced mild i
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she was receiving psychotherapy. A
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Mere diagnosis of a progressive con
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faced by applicants called upon to
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evidence is obtained by the parties
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terminated. In Relaxion Group plc v
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of the employment contract. Their L
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The EAT revisited the issue in Cath
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of making the application. It comme
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mobility, she would be unable to fo
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disabled person's disability. The C
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was criticised for failing to draw
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whether non-payment of sick pay to
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The Court of Appeal disapproved thi
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echoes the Code of Practice for Emp
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considering the evidence as a whole
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from the GP's certificate that the
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London Borough of Hammersmith 1 tha
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steps that might be regarded as rea
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set out in the early case of Morse
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Breach of the duty to make reasonab
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despite the omission of Morse. Furt
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In Farley v H. M. Prison Service 1
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adjustments is an objective questio
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material and substantial. If not sa
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unreasonably in relation to his dut
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of Appeal, the appellant alleged th
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(e) banking or insurance facilities
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on less favourable treatment brough
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Act, and to an example of less favo
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(a) remove the feature; (b) alter i
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court agreed that neither option av
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(c) refusal or deliberate non-provi
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These provisions apply to owners wh
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was common ground that she was fell
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Appendix: Interview Topic Guides Ap
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1. Introduction 1.1 Explain project
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3.1 Are they aware of any changes o
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jurisdictions to succeed at tribuna
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4. Issues relating to Part III of t
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■ timing — dates by which cases
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case in question (rather than simpl
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■ was there any attempt to resolv
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these parties; and ■ if satisfied
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Page 353 and 354: 4. Case-Study Discussion Guide:Advi
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Page 369 and 370: case or potential case, attempt, wh
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Page 377 and 378: happened as a result? ■ Was there
Page 379 and 380: eceived (cost, availability etc)? I
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Page 391 and 392: egard as important or relevant. Whe
Page 393: sources: especially DRC or Equality
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Page 399: You can contact the DRC Helpline by
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