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Disability cases and Employment Tribunals

I was wondering how many members (especially those working in the public sector) feel that the current trend of using employment tribunals to resolve disability cases is unnecessarily adversarial. I feel that it should be demonstrated other more conciliatory routes have been attempted (ACAS, Judicial Mediation) before the Respondent can insist on Public time and funding being used to defend these cases. Many of the claimants are litigant in person and disability cases have become so complex over the years that specialist lawyers are used by respondents. The ET proceedings are unnecessarily lengthy and stressful for both parties. 

Research that I have undertaken indicates strongly that a trend is emerging where the ethical values of HR professionals are being compromised by attempts to ‘win ET cases at all costs’ and by engaging specialist Counsel to do so. In the current economic climate alternative routes of dispute resolution should be considered to resolve disability issues. 

All views would be appreciated. I have already submitted comments to the Parliamentary Women and Equalities Committee on this subject. 

  • Hi Yvonne, I would highly recommend that you watch the million pound disability payout on BBC iplayer. Employees being treated badly, emails from senior managers about being sick of making reasinable adjustments. This is all from the DWP who should be role modelling on disability inclusion rather than being the biggest culprit of treating people with disabilities badly!
  • In reply to Christopher:

    Thank you Christopher
    I have watched this and the DWP and other government departments seem to be major culprits. I also think that local authorities have looked to ‘trimming’ their workforce to cope with austerity cuts by seeing their disabled members of staff as ‘low hanging fruit’.
    This includes organisations that purport to be ‘Disability Confident’ employers. The reticence to make reasonable adjustments is also now being relied upon to justify the behaviour.
    I know that HR Business Models are being used as an excuse and may make HR professionals believe that it is acceptable and perhaps provides some justification for them. Whether it can be manipulated to appear unlawful should not be the case. In my experience if something appears to be unfair and unethical it usually is.
    I am a retired public sector Business Manager with considerable experience of attendance management policies from both an HR and business perspective. I firmly believe that the progress made since the Macpherson Report and the enactment of the Equality Act 2010 is being severely undermined by public money being used when public sector organisations refuse to accept any responsibility for unethical and discriminatory practices and refuse to discuss matters in a conciliatory fashion.
    The ET is no forum to resolve these issues and I believe that especially for public sector organisations that mediation of some kind would be a fairer and more cost effective alternative.
    HR and Legal professionals should be able to provide a moral compass to organisations but it could be that in the current climate there are few who are brave enough to challenge the practices.
    After the current unprecedented changes to working practices and probable reduction of staff numbers this is likely to get worse.
    As a retired person who is still maintaining my professional competence I am able to lobby for changes and have actively been doing so for almost five years now.
    Any comments or feedback that I receive will be used In a professional and anonymised manner.
  • I think asking the HR professionals/managers involved in these cases is a start...from where does their advice/guidance stem from...what were they trying to achieve in these cases? I cringe when I read these cases for the employees and organisation/HR professionals. So much pain, distress caused and money wasted!
  • In reply to Yvonne Hall:

    Hi Yvonne, while I agree with you that it’s shocking that such public sector organisations (especially DWP) are flouting their obligations under the Equality Act, it’s also important that such cases do end up at ET and particularly EAT, as this is how case law is created around disability that can protect other employees or encourage people to fight for their rights. Any HR person worth their salt should be following updates to case law and applying them to their work, and if no disability discrimination cases ever went to ET there could be a lot of gaps in HR practitioners (and employment lawyers) understanding of their obligations.

    You might find this paper by Foster and Wass interesting, it looks at EAT transcripts for claims brought under the Disability Discrimination Act and analyses how employers seem to have an ‘ideal’ (non-disabled) person in mind which leads to a lot of (sometimes unintended) discrimination.
  • In reply to Christopher:

    Sometimes we have to defend the indefensible
    Sometimes we have to defend people and our employers from co-men, villains, the deluded etc
    On other occasion we defend difficult cases where the definition of fairness is open to debate and it is for the Tribunal system to adjudicate and interpret the law.
  • In reply to Christopher:

    Totally and good staff who could be retained find themselves disenfranchised from organisations where they were previously considered as valued members of staff.
    I think that triggers used in attendance management regimes will need careful management in the future if people displaying symptoms of contagious conditions need to stay away from the workplace. The reasonableness of some adjustments refused in the past will have been successfully challenged in 2020 so this may help HR professionals when they are explaining the need to consider reasonable adjustments to non HR managers.
    I sincerely hope that this may help to reduce the number of disability related claims needing to progress to full hearings.
  • In reply to Peter Stanway:

    Peter I agree PROVIDED that the access to the ET is fair and transparent and not subject to manipulation by either of the parties. The case management, disclosure process and file preparation should be undertaken independently.
    This is particularly relevant when one party is funded from public money and has a seemingly bottomless purse and the other party is fighting for their statutory rights.
    By employing legal representation and with no demonstrable cost benefit analysis being undertaken defending the indefensible can result in unjustifiable waste of public resources.
    This benefits none of the parties except the external lawyers which are regularly needed to defend these indefensible cases and even then their skills would be put to better use in resolving in a more conciliatory manner with only those who fail going to a full ET hearing.
    In publicly funded cases surely there is an argument that neither the claimant or the respondent should be able to refuse judicial mediation.
  • Clearly (imo) Employment Tribunals aren’t working. The system is over run and the delays are embarrassing leading to increased costs and stress for both sides.

    They were set up as a relatively informal process where issues could be raised in person. They rapidly went “legal” and are now courts in all but name. It’s regrettable but with the implications for both sides of unlimited awards and reputational damage it was inevitable I think.

    I also like to think ( and accept I may be delusional) that most (80/20) managers and HR professionals in both the private and public sectors dont set out to target or deliberately discriminate against disabled colleagues.

    I don’t recognise a situation where by colleagues are “using” the current crisis to deliberately target disabled colleagues for dismissal. I am not saying it doesn’t happen but I believe it’s the exception rather than the rule.

    I think many managers and HR colleagues genuinely struggle with the concept of reasonable adjustments. It’s the reasonable part where the discussion and conflict arises. Inevitably there may be a disagreement between the colleague and the management over what is reasonable. And I think this is the root of many cases.

    Do I think mediation and conflict resolution may be better? Well yes.... but... it needs to be funded far better than it is now and inevitably if you are “arguing “ over what is it isn’t a reasonable adjustment then no mediation or conflict resolution process will resolve all of these cases.

    Maybe it’s one of those 20 / 60 / 20 situations. 20% of cases clearly are the employer in the wrong. 20% the employee. It’s the 60% in the middle we end up arguing about because fundamentally the situation is unclear.
  • In reply to Yvonne Hall:

    It's only an impression, but seems to happen all too often, that as you observe Yvonne publicly-funded organisations seem to be very much more willing than the private sector to expend inordinate sums on defending their often questionable / essentially indefensible actions via slick / very very expensive lawyers at tribunals when even if they 'win' their cases as a result of sophisticated legal tactics, it's often a merely Phyrric Victory because the aggregate costs of defending these cases remains a substantial drain on the public purse. Whereas private sector managers who needlessly incurred such expenditure would quickly find their actions subject to financial scrutiny and if needs be retribution / punishment, so they tend not to get up to the same tricks.

    However, might not the answer be to make those in the public sector more genuinely accountable for their actions in this regard rather than to constrain access to full and proper judicial determination?

    Maybe some kind of Ombudsman independent of the public bodies involved to whom the aggrieved could complain and who has the power to investigate and to name and shame and even to punish individuals found to have been at fault?
    - just a thought.

  • In reply to David:

    But ... many private sector organisations end up settling cases not because of the merits of their cases. Or that they necessarily have done anything “wrong” but simply because it now costs X’000 to fight and X’000 minus Y’000 to settle. It’s pragmatic and commercial but not necessarily “justice”. I am not sure therefore it’s entirely a fair comparison.

    What it does show ( for disability and other cases) is that the system is broken and needs rapid reform which probably we will all agree on. Sadly that’s unlikely anytime soon.
  • In reply to Keith:

    Keith a really thought provoking response. I totally agree with your comments that nobody sets out to deliberately target disabled colleagues but the struggle with the concept of reasonable adjustments is definitely the area where conflict arises.
    It is a pity that in larger organisations that there is not always a willingness to consult specialist groups to inform these discussions. There are some organisations who are brilliant at this and their good practice should be shared.
    The funding of improvements to mediation services could be found from the savings to the Tribunal Services but I do believe that the timing for this kind of proposal may not be the best given the current national situation.
    Those members of CIPD who are in the earlier part of their should bear in mind that a good idea remains so but the timing is not always perfect.
    If and when ETs are up for discussion in the future please promote the cause for mediation and conciliation.
    The majority of cases are in the middle 60% segment and the solution could be less adversarial that the current arrangements
  • In reply to Keith:

    Keith it is dreadful that the private sector can ‘buy’ a solution but ten times worse when the public sector use public money to pay for specialist lawyers to present an adversarial and sometimes bullying case lacking any integrity against those trying to exercise their rights.
    I hope that in time this broken system will be addressed and I would propose that public sector cases could be mandated to be demonstration cases for the changes.
    These organisations should also be governed by the Public Sector Equality Duty as well as the Equality Act 2010.
  • In reply to David:

    Your response is very much on the lines of what I proposed to the Parliamentary Committee . I have also used the expression Phyrric Victory especially now that all ET decisions are published and serial offenders can be identified.
    I think that all cases should be reportable to some organisation such as the Equality and Human Rights Commission  whether they end up in a full ET hearing or not. Organisations such as this need to have ‘teeth’ to influence chsnge
    Like accident reporting there could be preventative action and recommendations made against those who keep having near misses.
    Some very good data for improvement can be harvested from previous incidents if companies can adopt a learning rather than a blame culture.

  • In reply to Yvonne Hall:

    I think probably the fundamental issue is that any solution at or near the point of an ET, be it a better ET system or compulsory mediation of some sort before an ET case can be raised or heard is too late. By then the damage has been done and it is often no more than a damage limitation exercise. Who loses the least often rather than a real way to resolve a dispute and allow all parties to move forward.

    Fundamentally any solution needs to be embedded in the work place and in a real adult-adult conversation to allow a meaningful discussion about what may be reasonable in the particular context of both the colleagues and the businesses situation. Sadly this too rarely happens.

    For what its worth I think the public sector is in some ways suffering from the pressure its been put under. There was huge outcry when they spend public money on "buying off" cases before an ET (in a way the private sector doesn't have) regardless of this was for commercial (ie cost to fight was higher than cost to settle) or simply accepting they were wrong reasons. That resulted in many organisations putting in quite strict rules about the very high levels of approval needed to settle cases and spend public money in this way. It has led to an imbalance where for many middle managers its easier in organisational terms to fight a case rather than seek approval to settle. And if you are going to fight then of course its human instinct to fight to win. (and the language is deliberate) An unintended consequence perhaps of earlier pressures.
  • Having worked in both the public sector and the private sector, I have found that public sector organisations seem to be vastly more supportive to people with disabilities than the private sector. The only time I have felt in any way 'pressured' to move someone out of an organisation because they were no longer able to carry out their role due to a disability, was in the private sector (obviously I didn't and found myself another job fairly soon after).

    I would be interested to hear what different support and practice you have found to be happening in the private sector?

    I have to admit that I find the implication that as HR Professionals working in the Public Sector, I, or my colleagues would in any way see disabled employees as 'low hanging fruit' when budget savings are needed and support practices targeting disabled employees, as outstandingly offensive.

    I don't disagree that the public sector has issues, however nowadays it is really probably one of the only places, where people can get 6 months full pay and 6 months half pay when they are off sick and access to immediate payment of a pension based on their average salary, if they become too unwell to work. From my experience in the private sector, if someone became too ill to do their role, it tended to resolve quickly though them choosing to resign and find another role, because whilst they were off sick waiting for another role, or adjustments to be identified/put in place, there were on statutory sick pay. There is a risk that if the public sector is targeted on this too much, many of the safeguards that employees in the public sector rely on if they become disabled, may get removed by the Government