Justice obtained? How disabled claimants fare at Employment Tribunals

AuthorSusan Corby,Laura William,Birgit Pauksztat
Date01 July 2019
Published date01 July 2019
Justice obtained? How disabled claimants
fare at Employment Tribunals
Laura William, Birgit Pauksztat and Susan Corby
This article explores disability discrimination cases at British Employment Tribunals.
Analysing over 750 judgments, it examines the characteristics of claimants and the
factors associated with the failure of cases: restrictive judicial decisions, complex legal
tests, inequality of arms between claimant and employer and the stigma attached to
claimants with mental impairments, providing some evidence for a hierarchy of
Across the globe, disabled people face discrimination in the labour market. Partly,
discrimination is the result of individual actions against a disabled person or a group
of disabled people (Foster and Scott, 2015; William, 2016), and partly, it is the result
of structural inequalities in society (Oliver, 2013). In response, many governments in-
tervene to provide statutory rights to protect individuals against discrimination, and
in Britain, this protection is provided through the Equality Act 2010. This Act pro-
hibits discrimination on many grounds including disability, with an individual claim
to an Employment Tribunal being the main avenue for redress.
Previous research on discrimination at Employment Tribunals focused on all types
of discrimination combined, rarely distinguishing disability separately (Harding et al.,
2014). Where disability discrimination cases have been studied, this has been at the
Employment Appeal Tribunal stage (see Konur, 2007 and Lockwood et al., 2013
14, 2014). This article, therefore, breaks new ground as it focuses solely on disability
discrimination cases at rst instance, Employment Tribunals.
In this article, we address two research questions. First, what are the characteristics
of those bringing disability discrimination claims to an Employment Tribunal? Sec-
ond, why do disability discrimination claims fail? To this end, we analysed all disabil-
ity discrimination judgments issued by Employment Tribunals in England and Wales
for three calendar years, 2015 to 2017 inclusive.
Our analyses show that most claims fail. The factors associated with failure include
restrictive court decisions around time limit extensions, complex tests of disability
Laura William, Department of Human Resources and Organisational Behaviour, The Business School,
University of Greenwich, London, UK, Birgit Pauksztat, Department of Business Studies, Uppsala
University, Uppsala, Sweden and Susan Corby, Department of Human Resources and Organisational
Behaviour, The Business School, University of Greenwich, London, UK. Correspondence should be
addressed to: Laura William, Senior Lecturer in Human Resources and Organisational Behaviour, The
Business School, University of Greenwich, Old Royal Naval College, Park Row, Greenwich, London
SE10 9LS, UK.
Email: l.c.william@greenwich.ac.uk
Industrial Relations Journal 50:4, 314330
ISSN 0019-8692
© 2019 Brian Towers (BRITOW) and John Wiley & Sons Ltd
status and the claimant having less expert representation than the employer. We con-
tribute to the literature in two key ways: rst, we locate the processes and outcomes of
disability discrimination cases in stigma theory, and second, we provide evidence that
there is a hierarchy of impairments with those with mental health impairments faring
worse than those with physical impairments in some crucial respects.
The article is organised as follows. We start by setting our study in the stigma liter-
ature and considering the barriers to justice. Then briey, we discuss the Employment
Tribunal process. Next, we present our methods and ndings, concluding with a dis-
cussion of the ndings and a consideration of some policy implications.
1.1 Stigma and barriers to justice
Goffman (1963: 9), in his seminal work on stigma, dened stigma as the situation
of the individual who is barred from full social acceptance either because of abom-
ination of the body, blemishes of individual character or tribal issues, for example,
race. While Goffmans work focused on micro level interactions, recent work fo-
cuses on stigma at a macro level, particularly stigma as a form of social control
and the lack of power inherent in stigma, which excludes stigmatised people from
economic and social life (Link and Phelan, 2014; Solanke, 2017). Stigma can,
therefore, be dened as the disadvantage that results from labelling, stereotyping,
status loss and discrimination that occurs in an environment that pardons
such treatment because of the low social and economic power of the stigmatised
group (Link and Phelan, 2014; Solanke, 2017), and disabled people meet this
We focus here on employment discrimination for which the main remedy is an in-
dividual ling a complaint to an Employment Tribunal after discrimination has oc-
curred, a reactive, not a proactive approach. Solanke (2017) argues that this
individual complaints model is unt to address the stigma underpinning discrimina-
tion, while Dickens (2012: 2) calls it a self-serviceapproach. It is a form of privatised
social justice (Ford, 2018: 6), as the state merely provides a forum and sets the proce-
dural rules where individuals must have knowledge of their rights to launch a claim.
Meager et al. (2002) show that white, male, better qualied, white collar employees
with permanent jobs are most aware of their rights; however, they are also least likely
to be stigmatised.
Solanke (2017) also argues that some stigmatised characteristics, for instance,
obesity, are not legally protected and where they are protected, there is a hierarchy:
more attention is paid to race and gender, than to mutable characteristics such as
religion. Importantly, disability (which can be mutable or immutable) is the only
protected characteristic where there is a prescribed, elaborate and multi-pronged le-
gal test that disabled claimants must meet before they can start to prove discrimina-
tion, and Goss et al. (2000) call this a double hurdle. The test (Equality Act 2010,
s.6) is as follows:
A person (P) has a disability if -
a P has a physical or mental impairment, and
A non-exhaustive list of normal day-to-day activities is given in Guidance on the Denition of Disability
315How disabled claimants fare at Employment Tribunals
© 2019 Brian Towers (BRITOW) and John Wiley & Sons Ltd

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