Time limits to issue claim - failure to make reasonable adjsutments

[mariefab]

Re: Time limits to issue claim - failure to make reasonable adjsutments

For a reasonable adjustments argument to succeed there is no need for a comparator in my opinion (but that is just my opinion). See also http://www.legislation.gov.uk/ukpga/2010/15/section/23

FYI, The relevant section (s.20(3)) disagrees with your opinion

...where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

Section 23 (in your link) applies to direct and indirect discrimination, not to reasonable adjustments.

[heisenberg]

Re: Time limits to issue claim - failure to make reasonable adjsutments

136Burden of proof

(1)

This section applies to any proceedings relating to a contravention of this Act.

(2)

If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.

Indeed, it is up to the Defendant/Respondent to provide that explanation and provide it clearly.

[charitynjw]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Indeed, it is up to the Defendant/Respondent to provide that explanation and provide it clearly.

& you think their high[y qualified (& highly expensive) legal representatives, who have access to legal databases far beyond Google, couldn't dig something up?

[heisenberg]

Re: Time limits to issue claim - failure to make reasonable adjsutments

FYI, The relevant section (s.20(3)) disagrees with your opinion

...where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

Section 23 (in your link) applies to direct and indirect discrimination, not to reasonable adjustments.

Thanks mariefab.

Section 23 deals with comparators does it not? There is no explicit mention of section 20?

Looking at the Framework Directive, to imply a direct discrimination comparator into reasonable adjustments is plainly wrong. Although a challenge to a comparative exercise per se failed in Foster v Cardiff University [2013] EqLR 718, I would suggest that it can and should be used to challenge the very narrow comparator that is currently being applied because Article 5 focuses on “appropriate measures … to enable a person with a disability to have access to, participate in, or advance in employment … unless such measures would impose a disproportionate burden on the employer”. That calls for a broader consideration than that in a direct discrimination context, albeit that Article 5 must be read together with Article 2.

Finally, applying the UN Convention on the Rights of Persons with Disabilities, there is considerable scope to argue that a narrow comparator should not be applied. What is key in this context is that the Convention speaks of reasonable accommodation: Article 27(1)(i) of the CRPD provides that state parties must “Ensure that reasonable accommodation is provided to persons with disabilities in the workplace”. Reasonable accommodation is defined as ensuring the enjoyment or exercise of rights on an equal basis with others. There is no prior requirement of substantial disadvantage. In addition this must be read together with the UN Convention’s use of a social model, rather than medical model, of disability. This emphasises the removal of societal barriers, rather than the individual’s condition and effectively broadens the definition of disability. It must also be read together with the emphasis on accessibility which runs throughout the Convention. Article 9 requires states to take measures to ensure accessibility: once again the requirement is accessibility; it is not the removal of substantial disadvantages to accessibility. Taking those two points together there are good arguments to suggest that reasonable accommodation similarly requires enjoyment of rights on a substantively equal basis with others, not formal equality with others. (For extended analysis on the UNCRPD see Fraser Butlin [2011] ILJ 428 and Lawson [2011] ILJ 359).

:tinysmile_twink_t2:

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& you think their high[y qualified (& highly expensive) legal representatives, who have access to legal databases far beyond Google, couldn't dig something up?

Haha... Yeah, I think in 99% of cases they will happily throw in any tosh.

[charitynjw]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Thanks mariefab.

Section 23 deals with comparators does it not? There is no explicit mention of section 20?

Looking at the Framework Directive, to imply a direct discrimination comparator into reasonable adjustments is plainly wrong. Although a challenge to a comparative exercise per se failed in Foster v Cardiff University [2013] EqLR 718, I would suggest that it can and should be used to challenge the very narrow comparator that is currently being applied because Article 5 focuses on “appropriate measures … to enable a person with a disability to have access to, participate in, or advance in employment … unless such measures would impose a disproportionate burden on the employer”. That calls for a broader consideration than that in a direct discrimination context, albeit that Article 5 must be read together with Article 2.

Finally, applying the UN Convention on the Rights of Persons with Disabilities, there is considerable scope to argue that a narrow comparator should not be applied. What is key in this context is that the Convention speaks of reasonable accommodation: Article 27(1)(i) of the CRPD provides that state parties must “Ensure that reasonable accommodation is provided to persons with disabilities in the workplace”. Reasonable accommodation is defined as ensuring the enjoyment or exercise of rights on an equal basis with others. There is no prior requirement of substantial disadvantage. In addition this must be read together with the UN Convention’s use of a social model, rather than medical model, of disability. This emphasises the removal of societal barriers, rather than the individual’s condition and effectively broadens the definition of disability. It must also be read together with the emphasis on accessibility which runs throughout the Convention. Article 9 requires states to take measures to ensure accessibility: once again the requirement is accessibility; it is not the removal of substantial disadvantages to accessibility. Taking those two points together there are good arguments to suggest that reasonable accommodation similarly requires enjoyment of rights on a substantively equal basis with others, not formal equality with others. (For extended analysis on the UNCRPD see Fraser Butlin [2011] ILJ 428 and Lawson [2011] ILJ 359).

Do you think your situation can be distinguished from the above by the fact that you don't work for either of them?

[heisenberg]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Do you think your situation can be distinguished from the above by the fact that you don't work for either of them?

Same principle applies. :tinysmile_twink_t2:

[charitynjw]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Same principle applies. :tinysmile_twink_t2:

Imho that would not be up to you or me to decide, it would be a judge's call :juge:

[heisenberg]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Same principle applies. :tinysmile_twink_t2:

If a person in wheelchair was denied access to a NHS hospital for example because there was no ramp, do you think the hospital would be able to successfully argue that "sorry, people that don't use wheelchairs don't have a problem getting around and therefore we don't believe you are at a disadvantage compared to them".

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Imho that would not be up to you or me to decide, it would be a judge's call :juge:

Indeed a Judge has already made a call in Foster v Cardiff University [2013] EqLR 718. :tinysmile_twink_t2:

http://www.employmentcasesupdate.co....aspx?i=ed16036

See paragraphs 52 to 67.

[charitynjw]

Re: Time limits to issue claim - failure to make reasonable adjsutments

If a person in wheelchair was denied access to a NHS hospital for example because there was no ramp, do you think the hospital would be able to successfully argue that "sorry, people that don't use wheelchairs don't have a problem getting around and therefore we don't believe you are at a disadvantage compared to them".

Res ipsa loquitor - I don't think your situation is quite as cut & dried.

[heisenberg]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Res ipsa loquitor - I don't think your situation is quite as cut & dried.

Maybe not.

[charitynjw]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Maybe not.

House of Lords in Shamoon v Chief Constable of the RUC [2003] ICR 377

The chief inspector had suffered a ‘detriment’ when the right to carry out appraisals was removed from her, but not this had not been for a discriminatory reason.

[heisenberg]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Code of practice (http://www.equalityhumanrights.com/s...rvicescode.pdf):

7.13
The disadvantage created by the lack of a reasonable adjustment is measured by comparison with what the position would be if the disabled person in question did not have a disability.

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House of Lords in Shamoon v Chief Constable of the RUC [2003] ICR 377

The chief inspector had suffered a ‘detriment’ when the right to carry out appraisals was removed from her, but not this had not been for a discriminatory reason.

That is a case of sex discrimination?

[charitynjw]

Re: Time limits to issue claim - failure to make reasonable adjsutments

Code of practice (http://www.equalityhumanrights.com/s...rvicescode.pdf):

7.13
The disadvantage created by the lack of a reasonable adjustment is measured by comparison with what the position would be if the disabled person in question did not have a disability.



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That is a case of sex discrimination?

It is also subject to objective justification - if they can show a reasonable reason why they acted as they did, it would be a defense.
It's a sort of balancing act between what they did, & a good reason why they did it.

& re Shamoon, it is the dicta of Lord Nicholls that is persuasive.

[mariefab]

Re: Time limits to issue claim - failure to make reasonable adjsutments

The firm I spoke to said that I suffered no disadvantage when compared to a non-disabled person (which is a bit like saying a person in a wheelchair suffers no disadvantage compared to someone who can walk).

No it isn't, unless you completely disregard the PCP, context, circumstances etc.
It's a lot like saying that a non-disabled person would suffer the same disadvantage.

A person in a wheelchair suffers no disadvantage compared to someone who can walk when doing all sorts of day-to-day activities.
They can complain of a failure to make a reasonable adjustment when their disability makes it impossible to undertake a day-to-day task like climbing stairs because they can't walk.
They can't complain that someone failed to make a reasonable adjustment to enable them to brush their hair because the ability to walk is not required to do this.
The function of a reasonable adjustment is to avoid or minimise the disadvantageous, substantial, adverse effect that an individual's particular disability has on their ability to carry out an everyday task.

If I remember, the reasonable adjustment that you wanted was connected to the quality and quantity of their communication throughout a complaint process.
Although I recall you saying that a PCP should be liberally interpreted; I don't think that you actually defined your PCP. Specifying the precise PCP is the first thing you need to do in a reasonable adjustment claim.

[heisenberg]

Re: Time limits to issue claim - failure to make reasonable adjsutments

It is also subject to objective justification - if they can show a reasonable reason why they acted as they did, it would be a defense.
It's a sort of balancing act between what they did, & a good reason why they did it.

& re Shamoon, it is the dicta of Lord Nicholls that is persuasive.

I see. I have not looked into that. I think I might have to. :goodjob: