Justice obtained? How disabled claimants fare at Employment Tribunals

• Author: Susan Corby,Laura William,Birgit Pauksztat
• Date: 01 July 2019
• Published date: 01 July 2019
• DOI: http://doi.org/10.1111/irj.12260

Justice obtained? How disabled claimants

fare at Employment Tribunals

Laura William, Birgit Pauksztat and Susan Corby

ABSTRACT

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

impairments.

1 INTRODUCTION

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 first 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, 314–330

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: first, 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 briefly, we discuss the Employment

Tribunal process. Next, we present our methods and findings, concluding with a dis-

cussion of the findings and a consideration of some policy implications.

1.1 Stigma and barriers to justice

Goffman (1963: 9), in his seminal work on stigma, defined 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 Goffman’s 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 defined 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

definition.

We focus here on employment discrimination for which the main remedy is an in-

dividual filing 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 unfit to address the stigma underpinning discrimina-

tion, while Dickens (2012: 2) calls it a ‘self-service’approach. 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 qualified, 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

1

A non-exhaustive list of normal day-to-day activities is given in Guidance on the Definition of Disability

2011.

315How disabled claimants fare at Employment Tribunals

© 2019 Brian Towers (BRITOW) and John Wiley & Sons Ltd