Non employment disability discrimination

Non  employment disability discrimination cases are usually decided  in small claims where  lawyers do not get paid by the other side if they win. The small claims track was intended to be usable without a lawyer after all. This is why  lawyers handling non-employment discrimination cases are very rare. Due to new rules I cannot give you anything like advice on how to Bring your own case. I can however tell you that I brought my own case and then made a website explaining the process. Areyoualien.uk

I am grateful for your response. Busy going through the site. 

I am exhausted after 5 years of searching. 

The Employment Statutory Code of Practice (EHRC) gives an example of a woman who is disciplined for losing her temper at work, as a result of severe pain caused by cancer, of which her employer was aware. The Code states that the disciplinary action is unfavourable treatment since it is taken because of something which arises in consequence of her disability, namely her loss of temper. There, the disability (cancer) is not the immediate cause of the “something” arising but has the necessary causal connection because it leads the employee to suffer pain, which in turn leads to the loss of temper – the something arising in consequence of the disability.

the bar council has a barrister finder website https://www.directaccessportal.co.uk and NAS has a directory of legal services that are suposed to be autism friendly, but its very out of date. www.autism.org.uk/.../search-results

The solicitor who filed my two previous claims for DD, is an ex barrister. Who then did exactly the same thing.

Trying to find public access barristers who deal with non employment DD is extremely difficult. I have some funds set aside to pay for written advice. 

Er. Ok hypothetically it might be considered a form of contract. However equally  law only requires companies to make reasonable adjustments. If a company agrees to something unreasonable equally law won’t apply just because they said it was reasonable.

the equality act is concerned with what’s objectively reasonable not what the subjective views of the parties are or were.

that said a signed document like that makes them look stupid at best and dishonest at worst which won’t help a hypothetical  defendants case. 

H&S, owing to duty of care to staff to protect their mental health.

If an officer of a company agrees to and signs a request for RA, no matter how outlandish, isn't that binding in law? 

67justdiagnosed said:

Whilst they may cite staff safety, and H&S, they still have to check to see what disadvantage that puts me under.

They do. that is an element of proportionality. But if they attempt to address those issues in ways that wouldn't disadvantaged a hypothetical claimant but it doesn't work because the hypothetical claimant won't cooperate then proportionality is much more likely to be satisfied.

Why would it be a health and safety issue though? It's not as though you were going to hurt staff members? Or threatening to?

67justdiagnosed said:

I have some examples, I will post of courts and tribunals accepting the anger as a direct result of a disability. 

I don't debate that it can be. And I couldn't know in this case whether it is. I'm just saying the issue of proportionality can't be ignored. Even if causation is undisputed the issue of objective justification and proportionality is likely to be key.

You should probably check they got the dates right too..

Again, where did I state I had sworn at anyone?

My communications with these people is to the point, without frivolities. I classed my comment as fair comment, as only an idiot, manages to get the spelling of the claimants name wrong on court documents, and input the wrong medical practice on the same document, after I had contacted them about 12 times to correct them. 

Whilst they may cite staff safety, and H&S, they still have to check to see what disadvantage that puts me under.

I have some examples, I will post of courts and tribunals accepting the anger as a direct result of a disability. 

All of this is going to be very dependent on details and really you don’t want to be putting the details of every little iota of your legal/insurance case on the Internet. Even if the rules of this website allowed us to give you advice it appears that this is not a simple discrimination case but one that  involves insurance law and possibly the practice of law and conduct of solicitors. You need to speak to a solicitor or a barrister there are some you can instruct directly. That would be my advice.

So to be clear you’re claiming that the insurance company didn’t forward these reports specifically because you accused the insurance company of discrimination.

to me that could be discrimination depending on the circumstances this is not advice this is just an observation. I am uncertain as to whether or not insurers have an obligation to act in your best interest. Your lawyers generally do even if you’re being a jerk to them. But insures it’s a whole other deal I’ve no idea what the law is. I would imagine if the reports were about you you would be entitled to copies under data protection regulations. I don’t know if failing to forward them to a third-party could be considered Any kind of malpractice. You would need to consult an expert.

I have stated to various parties, that at times my partner will assist me, or take over calls. I state that my preferred means of communication is via email. Some of the information received apart from being incorrect, was worded in a manner that could be seen as goading me into a reaction. 

A letter with 6 apologies for various acts of Negligence, was sent to me, but they not found to be Negligence by investigator. 

Absolutely. However there is a proportionality issue. If a hypothetical person says that autism causes them to swear at people well that may be causative. However  employers have a legitimate aim of not allowing their employees to be verbally abused so the question would be is the approach they took to that proportionate, and if the autistic person in question in this hypothetical scenario repeatedly refused other possibilities are alternatives to handling the situation then hypothetically it might be proportionate to simply refuse to represent a client.

I appreciate autism might cause someone to swear in person or in emails or to refer to people as idiots. A proportionate response might be to have some sort of written set of groundrules regarding written communication and the autistic person agreeing to review everything they write for adherence to these ground rules before it is sent.

again I am speaking hypothetically because I cannot possibly know exactly how things played out in your case and secondly because I’m not allowed to give you advice anymore

The insurance firm commissioned 5 reports that they did not forward to the opposition solicitors, so that is 5 separate acts of victimisation and retaliation. 

Where did I state that I shouted at anyone?

All my communications with my solicitor and insurance company were via email, owing to my temper!

The RA, we're accepted by both parties. 

They are stating that I used words like idiot, when highly agitated, that was after waiting for a day to send anything.

In the Silsby vs Waltham Forest Tribunal case. Silsby was deemed to have been unfairly dismissed for berating his manager, swearing and using racist language, the Judge stated it was a result of his disability., 

Er that's complex. so you are saying the solicitor ordered a doctors assessment / opinion, which was delivered to them but they never sent to the other side? That could be legal malpractice. but I'm not qualified to say ... you would definitely need to speak to a lawyer about that one. And if you struggle to keep your cool with your lawyer why not ask a trusted person to help you with emails?

depends on the lawyer. public defenders get very little in the uk.

Psychotherapists get paid around half as much as lawyers and yet are twice as 'capable' / 'skilled' / 'qualified' (as lawyers)  I saw that in a TV drama of this millennium but can't remember which one 

I see but I’m surprised that they would consider that a reasonable adjustment. Something like ‘I have difficulty controlling my anger and may need regular breaks in order for me to calm down’ sure but I don’t think many judges or courts would consider it a reasonable adjustment to have to have someone sit there while you vent your anger at them.

perhaps a therapist or some other clinical professional dealing with your mental health issues, but not a lawyer. Now reasonable adjustment of accepting that  you may occasionally lose your temper briefly, and at that point it’s time to take a break, that I could see being a reasonable adjustment. But having to have people just sit there for a prolonged period while you shout at them I don’t see that being accepted as a reasonable adjustment.

again not legal advice it’s just something I’ve never heard of as a reasonable adjustment before. and in a sense a reasonable adjustment should mirror the principle of proportionality. there are less extreme ways of addressing your difficulty controlling your anger.

Peter, can you see the three cases I listed, when I replied to myself above?

After not supplying the agreed RA, they stopped representing me. 

I found out later, after the opposition solicitors slated them for not having been provided with any medico legal reports for nearly a year! I had five reports that were not sent in. That smacks of retaliation and victimisation for having complained about DD, and lack of reasonable adjustments.

Reasonable adjustments should include: 

·          Questions being kept simple and addressing only one point at a time; 

·          Allowing time for client to respond; 

·          Allowing for the *venting of anger and *irritability; 

Reasonable adjustments should include: 

·          Questions being kept simple and addressing only one point at a time; 

·          Allowing time for client to respond; 

·          Allowing for the *venting of anger and *irritability; 

yes my understanding is causation in section 15 is 'but for' causation. so breaking down section 15(1)(a) the conditions are:

• B is disabled (autistic)
• A treats B unfavourably (by refusing services for instance)
• A does this because of some factor X (for example some one loosing their temper as in your example)
• X would not be the case if B was not disabled (autistic)

So disability (autism) doesn't have to be the direct cause or only cause of X. It's enough that but for autism X wouldn't have arisen. That's my understanding of 15(1)(a) and i think that's what you are referring to?

However the test in 15(1)(b) can't be ignored. Unless a defendant is really stupid they will generally try in any lawsuit to appeal to section 15(1)(b) as a defence. The bit where it says "It will be discrimination arising from disability if the employer cannot objectively justify the decision to discipline the worker." thats a reference to section 15(1)(b). This guy explains it well (https://www.stammeringlaw.org.uk/disability-equality-law/discrimination/discrimination-arising-from-disability/justification/).

Again I can't tell you how 15(1)(b) might apply in your case. But you certainly need to consider what arguments the defence might use to try and invoke 15(1)(b) as a defence.

The Employment Statutory Code of Practice (EHRC) gives an example of a woman who is disciplined for losing her temper at work, as a result of severe pain caused by cancer, of which her employer was aware. The Code states that the disciplinary action is unfavourable treatment since it is taken because of something which arises in consequence of her disability, namely her loss of temper. There, the disability (cancer) is not the immediate cause of the “something” arising but has the necessary causal connection because it leads the employee to suffer pain, which in turn leads to the loss of temper – the something arising in consequence of the disability.

Er. Ok hypothetically it might be considered a form of contract. However equally  law only requires companies to make reasonable adjustments. If a company agrees to something unreasonable equally law won’t apply just because they said it was reasonable.

the equality act is concerned with what’s objectively reasonable not what the subjective views of the parties are or were.

that said a signed document like that makes them look stupid at best and dishonest at worst which won’t help a hypothetical  defendants case. 

H&S, owing to duty of care to staff to protect their mental health.

If an officer of a company agrees to and signs a request for RA, no matter how outlandish, isn't that binding in law? 

67justdiagnosed said:

Whilst they may cite staff safety, and H&S, they still have to check to see what disadvantage that puts me under.

They do. that is an element of proportionality. But if they attempt to address those issues in ways that wouldn't disadvantaged a hypothetical claimant but it doesn't work because the hypothetical claimant won't cooperate then proportionality is much more likely to be satisfied.

Why would it be a health and safety issue though? It's not as though you were going to hurt staff members? Or threatening to?

67justdiagnosed said:

I have some examples, I will post of courts and tribunals accepting the anger as a direct result of a disability. 

I don't debate that it can be. And I couldn't know in this case whether it is. I'm just saying the issue of proportionality can't be ignored. Even if causation is undisputed the issue of objective justification and proportionality is likely to be key.

You should probably check they got the dates right too..

Again, where did I state I had sworn at anyone?

My communications with these people is to the point, without frivolities. I classed my comment as fair comment, as only an idiot, manages to get the spelling of the claimants name wrong on court documents, and input the wrong medical practice on the same document, after I had contacted them about 12 times to correct them. 

Whilst they may cite staff safety, and H&S, they still have to check to see what disadvantage that puts me under.

I have some examples, I will post of courts and tribunals accepting the anger as a direct result of a disability. 

Absolutely. However there is a proportionality issue. If a hypothetical person says that autism causes them to swear at people well that may be causative. However  employers have a legitimate aim of not allowing their employees to be verbally abused so the question would be is the approach they took to that proportionate, and if the autistic person in question in this hypothetical scenario repeatedly refused other possibilities are alternatives to handling the situation then hypothetically it might be proportionate to simply refuse to represent a client.

I appreciate autism might cause someone to swear in person or in emails or to refer to people as idiots. A proportionate response might be to have some sort of written set of groundrules regarding written communication and the autistic person agreeing to review everything they write for adherence to these ground rules before it is sent.

again I am speaking hypothetically because I cannot possibly know exactly how things played out in your case and secondly because I’m not allowed to give you advice anymore

Where did I state that I shouted at anyone?

All my communications with my solicitor and insurance company were via email, owing to my temper!

The RA, we're accepted by both parties. 

They are stating that I used words like idiot, when highly agitated, that was after waiting for a day to send anything.

In the Silsby vs Waltham Forest Tribunal case. Silsby was deemed to have been unfairly dismissed for berating his manager, swearing and using racist language, the Judge stated it was a result of his disability., 

depends on the lawyer. public defenders get very little in the uk.

Psychotherapists get paid around half as much as lawyers and yet are twice as 'capable' / 'skilled' / 'qualified' (as lawyers)  I saw that in a TV drama of this millennium but can't remember which one 

I see but I’m surprised that they would consider that a reasonable adjustment. Something like ‘I have difficulty controlling my anger and may need regular breaks in order for me to calm down’ sure but I don’t think many judges or courts would consider it a reasonable adjustment to have to have someone sit there while you vent your anger at them.

perhaps a therapist or some other clinical professional dealing with your mental health issues, but not a lawyer. Now reasonable adjustment of accepting that  you may occasionally lose your temper briefly, and at that point it’s time to take a break, that I could see being a reasonable adjustment. But having to have people just sit there for a prolonged period while you shout at them I don’t see that being accepted as a reasonable adjustment.

again not legal advice it’s just something I’ve never heard of as a reasonable adjustment before. and in a sense a reasonable adjustment should mirror the principle of proportionality. there are less extreme ways of addressing your difficulty controlling your anger.