Disabled workers can’t afford justice to deal with workplace harassment
Since the government introduced fees for employment tribunals, together with legal aid cuts, disabled people have increasingly been unable to have their cases heard…
The abuse started for Helen Adams (not her real name), a senior administrator at a major UK charity, after her boss watched her get out her of wheelchair. The 40-year-old has multiple sclerosis and struggles with mobility, but on a “very good day” she says she was able to walk in the office.
“I went to lunch and a manager who’d seen me walking earlier yelled at me across the busy room to get out of my wheelchair because ‘I wasn’t really disabled’,” Adams recalls. “I was so shocked and upset that I didn’t know what to say. I said nothing. The rest of the day, people were looking me up and down and tutting at me.”
Over the next few months, the harassment spread throughout the office.
“People started pressing all of the lift buttons when they saw me coming, then they would close the doors so the lift would go all over the place while I waited there,” she says. “All the while, I could hear people on the floor above and below me shouting “Lazy cow!”
The stress led Adams to go on sick leave and start twice-weekly counselling. A few months later her manager told her she needed to learn to ignore the abuse. Instead she went for legal advice.
What Adams didn’t know was that in July 2013 – just as her workplace abuse began – the coalition government had brought in fees to have a claim heard at an employment tribunal (the first time fees have been charged since the tribunal system was established in 1964).
“The solicitor told me I had a clear case but, because of the new fees, I’d need to pay for it myself. I couldn’t afford that and my therapy,” Adams says. “I knew I had no comeback.”
This threat to disabled worker’s employment rights is highlighted in new research by the Public Interest Research Unit (PIRU) and the campaign group, Disabled People Against Cuts (DPAC),seen exclusively by The Guardian. With the House of Commons justice committee’s wider inquiry into the impact of the introduction of tribunal fees due to report early this year – the research chronicles the experiences of 270 disabled workers. It shows not only a marginalised group open to discrimination at work but, increasingly, faced with little way out.
In 2014, the high court dismissed a challenge by Unison over the wider legality of the fees regime and the supreme court is currently considering Unison’s application to appeal the decision.
The government’s equality impact assessment in 2012 confidentially concluded that fees would have few if any adverse impacts on equality or equality groups. But according to Ministry of Justice (MoJ) figures, disability discrimination claims have fallen rapidly since fees were introduced: 63% fewer were accepted by the employment tribunals between the first quarter of 2013/14 (pre-fees) and the first quarter of 2014/15 (post-fees).
“We know the number of discrimination cases going to employment tribunal has dropped off a cliff but we also know that discrimination of disabled people in the workplace hasn’t,” says Lucille Thirlby, head of equality at the trade union, Unison.
Taking a disability discrimination case to an employment tribunal costs a minimum of £1,200.
The government has put a remission scheme in place but to qualify for a reduced or no fee, an individual has to pass a monthly income and “disposal capital” (such as savings) test. The MoJ has confirmed that disability living allowance (DLA) and its replacement, personal independence payment (PIP) is included as “disposable capital”. In practice, this means disabled applicants – who need DLA or PIP to pay for disability costs – are in the perverse situation of risking being judged as less eligible for help with fees than non-disabled people.
The PIRU research suggests that it is not only fees that are affecting disabled workers’ ability to go to employment tribunals but have actually encouraged employers’ sense of freedom to discriminate in the first place. Another respondent with a visual impairment who works in the third sector says due to government cuts in legal aid funding she wasn’t able to access proper advice and didn’t make it past a preliminary hearing for a tribunal.
It also points to the wider, hostile climate facing disabled workers: vulnerable to being victimised by employers but charged for the right to seek justice, and cut off from legal representation. As one respondent, a local council data analyst, put it: “The whole lot has a chilling effect on even contemplating a case, no matter how bad or personally hurtful the level of discrimination”.
Adams is still in the same job, daily faced by the same manager and colleagues. “It’s never really stopped, it just got less,” she says. “I’m still very anxious if certain people come near me at work and I’m still on the antidepressants. I’ll simply lump it until the stress of it simply drives me from my job.”
Written by Frances Ryan