Disabling discrimination

The Disability Rights Commission feels the best way to win rights is through conciliation, using litigation as a last resort. But many of those it represents believe the courtroom is the only arena that will give them a fair fight. Who’s right?

The Equal Opportunities Commission (EOC) and the Commission for Racial Equality (CRE) have been fighting the good fight since the 1970s, and the DRC is the new kid on the block.
The statutory remit of the DRC, which is two years old this month, is to work to eliminate discrimination against disabled people, promote equal opportunities, encourage good practice and advise the Government on the working of the Disability Discrimination Act 1995 (DDA).

“We’ll start by using the force of argument and, if that fails, we’ll use the argument of force,” DRC chairman Bert Massie once said. But from the start, the DRC has sought to distinguish itself from its peers, not least in its attitudes to litigation.

Massie, a respected campaigner who contracted polio in his childhood and who uses a wheelchair, has been eager to assert that his commission was more interested in ‘partnership’ and ‘conciliation’ than the legal enforcement of the rights of the disabled through the tribunals and courts. Massie has said repeatedly that litigation was to be regarded by the watchdog as a last resort.

It is a sentiment that has frustrated some lawyers and campaigners. “If you’re disabled, that’s not going to inspire you with confidence,” comments Makbool Javaid, a former head of litigation at the CRE and an employment partner at DLA. “The law is a powerful tool in changing attitudes and there need to be sanctions and the enforcement of the law.”

Dr Amir Majid, a reader in law at London Guildhall University and a Government adviser on the rights of the disabled, believes the new watchdog is missing an opportunity. “Those running the commission have not exploited the full potential given to them by the legal framework of the Disability Discrimination Act 1995,” he reflects.

“Society needs statutory protection because it has failed to achieve equality and a non-discriminatory environment,” he argues. “Conciliation has more or less failed and, after all, what was the fight for these statutory protections about if not to use them?”

There are 6.7 million disabled people of working age, and according to the DRC discrimination is rife. For example, recent DRC research shows that disabled people are nearly eight times as likely as non-disabled people to be out of work and claiming benefits and they are twice as likely as non-disabled people to have no qualifications.

Majid reckons that prejudice against the disabled is more insidious than race or gender discrimination. It often comes “peppered with civilised noises” so that the disabled “don’t feel it as the knife is stuck in”, he notes.

“And there’s the rub,” continues Majid. “The DRC should be going out encouraging claimants to come forward and finding cases rather than viewing litigation as the last resort.”

Nevertheless, disability rights campaigners are supportive of the watchdog that they have fought so long for.

“The setting up of the DRC was a massive breakthrough as it was the first body of its kind – with ‘legal teeth’ – representing disabled people,” reckons Liz Daone, the campaign manager for disability organisation Scope.

Scope supports the DRC’s approach “to promote conciliation before the parties resort to litigation”. But Daone also says that Scope “has no compunction in pointing out the legal implications of continuing with discriminatory practices”. “Education, persuasion and litigation go hand-in-hand,” she adds.

The DRC employs a legal team of five lawyers and 20 caseworkers, mainly in Manchester. Unsurprisingly, there has been a huge surge of interest and the DRC helpline has fielded more than 200,000 calls in the last two years. The caseworkers have taken on some 2,000 cases, 105 of which have been ‘formally funded’. More than 200 cases have been dealt with through the DRC’s own independent conciliation scheme. Of the 105 legal cases, roughly two-thirds relate to employment issues under Part II of the DDA and one-third relate to goods and services under Part III.

Nick O’Brien, the DRC’s head of legal, says that the figures bear out the body’s policy of conciliation first and litigation last. “When you consider the number of calls to the helpline and the number of cases referred to conciliation, it’s clear that most of those cases have been moved on without formal recourse to substantive legal representation,” O’Brien says. He reckons that the 105 cases represent “a relatively small proportion where it has been necessary to try and take forward some issue that needs to be clarified or it meets some particular individual need”.

The DRC has just stepped up its legal profile. Previously, the watchdog handled the caseload in-house, but it has just announced that a panel of more than 40 firms and some 20 sets of barristers’ chambers will take on discrimination work. Fees will be capped at £120 an hour in London and £100 an hour outside the capital.

Lawyers on the ground working with the DRC reckon there has been a judicious and effective use of resources. “They haven’t gone in all guns blazing because they want to be seen as pragmatic as well as using the stick if they have to,” comments Paul Daniels, a disability discrimination solicitor at Russell Jones & Walker. “I think they’re using their resources wisely on where there is a real need rather than a scatter gun approach.” Russell Jones is the firm to have worked most closely with the DRC, having advised on its cases from the start and having handled 90 cases in the last financial year for the commission.

Of course, the DRC is forced to operate within the constraints of a tight budget. In its first year it had £11m – halfway between the £6m available for the EOC and the £15.5m for the CRE – and puts aside £1.25m a year for its legal team. One quarter of that is spent on individual cases.

The DRC has a 12-point plan, set out in its legal strategy for 2001-2003, on how to best spend the money through test cases. For example, it cites cases to establish the threshold for the justification of unequal treatment of disabled people by employers and service providers, as well as actions to establish the threshold for the justification of failure to make reasonable adjustments for disabled people by employers and service providers.

There have been notable successes. Daniels points to the leading case of Jones v 3M Healthcare, where the courts considered whether the DDA covered discrimination after employment had ended, for example where a disabled ex-employee who had alleged discrimination was provided with a poor reference. Other lawyers commend the work that the DRC has done in ensuring that the DDA covers the early non-symptomatic stages of illnesses such as cancer and HIV.

David Ruebain, head of education and disability at David Levene & Co and another DRC panel member, believes the commission’s profile is rising. “Their powers have been extended recently because of the forthcoming introduction of anti-discrimination provisions in schools and colleges,” he notes. The DDA had excluded education from the anti-discriminatory provisions. The legislation was subsequently amended by the Special Education Needs and Disabilities Act 2001, which comes into force in September.

Ruebain believes there has been “a significant deficit” of cases brought under Part III of the DDA. But he points to the case of Tom White as an example of a noteworthy success. The case concerned a schoolboy who was banned from school trips because of his diabetes. It was the first disability discrimination case taken against a school.
Currently, the DDA does not cover the education system. The judge ruled, however, that the school should have allowed Tom to go on the activity trip.

Both Ruebain and Daniels believe that the DRC has also been a powerful force for change behind the scenes. Daniels points to work that the DRC has done lobbying on the the EU Anti-Discrimination Directive, which is due to come into force from 2004. Massie has been critical of the Government for failing to extend the provisions of the DDA to all forms of public transport or to introduce “a positive duty” on public bodies to actively promote equal opportunities.

Lawyers also cite the watchdog’s notable success in campaigning for the reduction of the small employer protection, whereby the DDA only applies to businesses with 15 or more staff. The Government has agreed in principle to scrapping it. “They’re certainly proving to be an effective communicator with the Government,” says Daniels.

Julie Quinn, deputy chair of the Employment Lawyers Association and a partner at Allen & Overy, sees a philosophical difference between the DRC and the other older discrimination watchdogs that is in keeping with a different era. “They’re pushing a more non-confrontational approach and it’s not just about seeking out the cases and getting a slam-dunk judgment against the employer, but they’re looking towards partnership.”

But Javaid at DLA believes that the DRC should be learning the lessons of its sister commissions. He applauds the innovation of the group in certain areas (such as its helpline) but he believes that a ‘litigation strategy’ has failed to manifest itself. He points out that the CRE lawyers worked on a shoestring budget and managed to back leading cases that changed the law and at the same time grab the headlines.

“The fight for gender equality has moved on since the days of the suffragettes,” says Javaid. “But only now has there been greater recognition by society of the discrimination suffered by the disabled and you would expect a more powerful message to be coming through.”