Justiciable Disability Rights and Social Change: A Northern Ireland Case Study

Magill, Deborah

doi:10.1007/978-3-319-24016-9_7

Deborah Magill³

924 Accesses

Abstract

For many decades disability discrimination legislation in the UK has provided justiciable rights for people with a disability. In Northern Ireland discrimination on the grounds of disability in employment, education, access to goods and services, or property tenancy is prohibited by the Disability Discrimination Act 1995 (DDA). Disability rights within the Act are domestically justiciable, with complaints being brought for disability discrimination in employment to an Industrial Tribunal (IT) in Northern Ireland. Whilst the current legislation provides rights to individuals, these justiciable rights have been utilised by organisations seeking to bring about social change for disabled people both individually and collectively. This chapter will examine the strategic use of domestically justiciable individual rights by organisations working to secure social change in the area of disability rights in the workplace. In particular it will analyse the differing perspectives, on the utility of justiciable rights in securing social change, of two organisations: Disability Action (DA) and the Equality Commission for Northern Ireland (ECNI). An introduction to the origins and objectives of each organisation will be followed by a detailed look at DA’s involvement in referring and supporting claimants seeking to litigate and how ECNI has engaged in a litigation strategy throughout the 10 years 2001–2011. The chapter will then explore the role played by litigation and how important it has been for ECNI and DA in their pursuit of social change for disabled workers. It will analyse the reasoning behind each of the organisations’ engagement with Industrial Tribunals in Northern Ireland. The empirical data used in this analysis has been drawn from seven case files held by ECNI on completed cases which were examined in detail; interview transcripts from semi-structured interviews with four staff from DA and eight staff from ECNI; DA and ECNI publications. The analysis will benefit from insights drawn from current literature on law and social change.

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Notes

1.
As modified for application in Northern Ireland by the Disability Discrimination Act 1995, sch 8. Disability discrimination law in Northern Ireland has been extended since the passing of this Act, in particular by the Disability Discrimination (NI) Order 2006. The Disability Discrimination Act 1995 has been repealed in England and Wales and replaced by the Equality Act 2010.
2.
Disability Discrimination Act 1995, s. 8(1). Where the IT finds for the claimant it may make a declaration of rights; order the respondent to pay compensation to the claimant or recommend specific action by the respondent: Disability Discrimination Act 1995, s. 8(2). Where, without reasonable justification, the Respondent does not take action recommended by the IT compensation the IT may make may order compensation or increase the amount of compensation under an existing compensation order see DDA 1995, s 8(5).
3.
In order to safeguard the anonymity of Interviewees job titles have not been used throughout this chapter when referring to interview data. Interviewees have been divided into two groups: team members and managers. Team members are those working directly on litigation or related strategies. Managers are those with influence over strategy selection and/or case selection. Within both organisations there is some overlap between these roles in that managers may also work directly on litigation or related strategies.
4.
A brief history of the organisation is available at: Disability Action, ‘Organisation and History’, http://www.disabilityaction.org/about/organisation-and-history/.
5.
Twenty-seven DA employees work in this department across all four offices.
6.
Details of all DA funding sources can be found in: Disability Action, ‘Annual Report 2011–12’ (Disability Action 2012) available at: http://www.disabilityaction.org/fs/doc/publications/annual-report-2011-to-2012-large-print.pdf.
7.
Financial assistance is assessed on an individual case basis. An employer may be given a lump sum to cover development costs such as the cost of extra supervision or training requirements.
8.
Similar sessions have been organised for employers but there has been very poor uptake of places. Interview D2, Employment and Training Support, Disability Action, (Disability Action) Belfast, Northern Ireland, 15 November 2011.
9.
Northern Ireland Act 1998, s 74.
10.
Ibid.
11.
The functions of the ECNI in relation to disability discrimination are set out in The Equality (Disability, etc) (NI) Order 2000 (Equality Order 2000), art 4.
12.
The ECNI has the power to investigate alleged non-compliance with s 75 under the Northern Ireland Act 1998 sch 9, paras 10 and 11.
13.
Publications available online, see Equality Commission for Northern Ireland, ‘Employer Focus’ (ECNI) available at: http://www.equalityni.org/sections/default.asp?secid=3.
14.
Assistance in relation to legal proceedings is granted by the ECNI under the Equality Order 2000, art 9(2).
15.
Available to download from the Equality Commission for Northern Ireland, ‘General: Commission Supported Cases’, (ECNI), available at: http://www.equalityni.org/sections/default.asp?cms=Publications_General_commission%20supported%20cases&cmsid=7_36_983&id=983&secid=8.
16.
Interview D3, Employment and Training Support, Disability Action, (Disability Action) Belfast, Northern Ireland, 15 November 2011.
17.
Ibid.
18.
Ibid.
19.
Interview D3 (n 16).
20.
Interview D2 (n 8).
21.
Ibid.
22.
Interview D1, Employment and Training Support, Disability Action, (Disability Action) Belfast, Northern Ireland, 15 November 2011.
23.
Interview D3 (n 16).
24.
Interview D2 (n 8).
25.
Ibid.
26.
Interview D3 (n 16).
27.
The LFC do not always follow the recommendations of the Senior Legal Officer.
28.
According to the ECNI 1 in 3 applications for free legal assistance are supported and at any one time ECNI are supporting 100 claimants in taking a case. Note this figure relates to complaints across all grounds of discrimination and is not limited to employment cases. See Equality Commission for Northern Ireland, ‘Taking a Discrimination Case: A layperson’s guide to taking a case of discrimination in employment’ (ECNI) available at: http://www.equalityni.org/sections/default.asp?cms=your%20rights_Taking%20a%20discrimination%20case%20-%20a%20guide&cmsid=2_688&id=688&secid=2.
29.
Interview E8, Strategic Enforcement Department, ECNI (ECNI Belfast, Northern Ireland, 16 August 2011).
30.
This is the form used in the questionnaire procedure provided by the DDA 1995, s 56. The form requests information from the Respondent about their treatment of the claimant in order to help the claimant to decide whether to make a claim and to allow them to present that claim fully on their ET1(NI) application form to the IT. Time limits and service requirements relating to the DL56 are contained within the Disability Discrimination (Questions and Replies) Order 2004, s 56.
31.
ET1(NI) is the application form a claimant must complete and send to the Industrial Tribunal in order to initiate an employment law claim.
32.
The ECNI provide a Discrimination Complaint Pack which contains guidance on how to lodge an ET1(NI) form with the Office of Industrial and Fair Employment Tribunals (OIFET).
33.
Jurisdiction for hearing employment claims and rules of procedure for the IT are contained within the Industrial Tribunals (Constitution and Rules of Procedure) Regulations (NI) 2005 (Industrial Tribunals Regulations 2005).
34.
Unless this would disclose information falling within s 16 of the Industrial Tribunals Regulations 2005.
35.
Ibid., s 4(1); The Industrial Tribunals (NI) Order 1996 (IT Order 1996), art 6, allows for the Chairman to sit alone in some cases including where the parties have given their written consent or the Respondent does not contest or ceases to contest the case.
36.
IT Order 1996, art 8.
37.
Provision of legal aid for legal advice depends on the claimant’s disposable income and is provided by the Northern Ireland Legal Services Commission.
38.
Industrial Tribunals Regulations 2005, s 40(3).
39.
IT Order 1996, art 22.
40.
The Rules of the Court of Judicature (NI) 1980, order 60B.
41.
For example in 2007/08 a total of 25 disability discrimination IT cases were supported by ECNI; 22 settled before hearing; 1 won; 2 lost.
42.
This Act was amended in 2004 to bring into domestic legislation the requirements relating to disability discrimination of the EU Employment Framework Directive, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation [2000] OJ L303/16; Disability Discrimination Act 1995 (Amendment) Regulations 2003. s 17A Disability Discrimination Act 1995 provides for enforcement of the Act by the alleged victim of discrimination.
43.
Equality Commission for Northern Ireland, ‘Disability Code of Practice: Employment and Occupation’ (ECNI 2005) available at: http://www.equalityni.org/archive/pdf/DisEmploymentCOP05F.pdf which was issued under s 53 DDA 1995.
44.
OFMDFM, ‘Disability Discrimination 1995: Guidance on matters to be taken into account when determining questions relating to the definition of disability’ (OFMDFM 2008); This guidance is issued under s 3 of the definition of disability under DDA 1995 and is available at: http://www.ofmdfmni.gov.uk/disabilitydiscriminationact1995.pdf. The ECNI have also published a booklet on the definition of disability under the DDA 1995, see Equality Commission for Northern Ireland, ‘Definition of Disability: Disability Discrimination Act 1995’ (ECNI 2007) available at: http://www.equalityni.org/archive/pdf/DefinitionofDisability07.pdf.
45.
Case Files E4 and E6.
46.
Five of the seven ECNI case files examined for this research involved a claim of failure to make reasonable adjustments.
47.
DDA 1995, s 18B(2).
48.
However, it should be noted that no case files were provided for this research for examination by the ECNI where assistance had been discontinued prior to hearing or settlement.
49.
ECNI clients are made aware at the time of application for legal assistance that ECNI will require this to be included in any settlement terms.
50.
Case file E7.
51.
Interview E1, Strategic Enforcement Department, ECNI (ECNI Belfast, Northern Ireland, 19 October 2011); ‘Thran’ is a colloquial Northern Irish term used to refer to a person who is stubborn or obstinate. Note the majority of Respondents, including those in the case files examined for this research, do have legal representation.
52.
Interview E4, Strategic Enforcement Department, ECNI (ECNI Belfast, Northern Ireland, 23 August 2011).
53.
Interview D2 (n 8).
54.
Interview D3 (n 16). DA is not overtly critically of the process which they see as unavoidably legalistic because disability discrimination cases are complex.
55.
Interview D1 (n 22).
56.
Interview D3 (n 16).
57.
Ibid.
58.
Interview E2, Strategic Enforcement Department, ECNI (ECNI Belfast, Northern Ireland, 16 August 2011).
59.
McCann (1994), p. 175.
60.
Interview E3, Strategic Enforcement Department, ECNI (ECNI Belfast, Northern Ireland, 19 October 2011).
61.
Interview E1 (n 51).
62.
Interview E3 (n 60).
63.
Interview D2 (n 8).
64.
Interview D1 (n 22).
65.
Interview D3 (n 16).
66.
Interview D1 (n 22).
67.
Interview D2 (n 8).
68.
Palmer v Social Security Agency [2008] NIIT131/07IT (11 November 2008); ECNI supported this case to IT.
69.
Ibid., para 21.
70.
The IT calculates the level of award for injury to feeling in line with guidance set down by the Court of Appeal in Vento v Chief Constable of West Yorkshire Police (No 2) [2003] IRLR 102.
71.
Interview D3 (n 16).
72.
Interview D1 (n 22) and Interview D4, Employment and Training Support, Disability Action, (Disability Action) Belfast, Northern Ireland, 15 November 2011.
73.
Ibid., Interview D4.
74.
Interview D3 (n 16).
75.
Olson (1995), p. 209.
76.
Kostiner (2003), p. 336.
77.
Ibid., p. 349.
78.
Ibid., p. 354.
79.
Interview D3 (n 16).
80.
Ibid.
81.
Interview E3 (n 60).
82.
Interview E5, Strategic Enforcement Department, ECNI (ECNI Belfast, Northern Ireland, 23 August 2011).
83.
Ibid.
84.
Ibid.
85.
Interview E1 (n 51).
86.
Interview E3 (n 60).
87.
Ibid.
88.
Interview E1 (n 51).
89.
Interview E4 (n 52).
90.
Galanter (1983), pp. 122 and 132.
91.
Interview E1 (n 51).
92.
Interview E8 (n 29).
93.
Interview E4 (n 52).
94.
Ibid.
95.
Interview E5 (n 82).
96.
Interview E3 (n 60).
97.
Ibid.
98.
Elizabeth Boyle v SCA Packaging Ltd [2006] NIIT 3444/01IT (23 May 2006).
99.
SCA Packaging Ltd v Boyle [2008] NICA 48.
100.
SCA Packaging Limited v Boyle [2009] UKHL 37.
101.
Cosgrove v Northern Ireland Ambulance Service [2006] NICA 44.
102.
Interview E2 (n 58).
103.
Kostiner (2003), p. 349.
104.
Interview E2 (n 58); It is not within the scope of this research to measure how successful the ECNI litigation strategy has been in eliminating disability discrimination in the workplace throughout Northern Ireland.
105.
Interview E3 (n 60).
106.
Ibid.
107.
Ibid.
108.
Interview E5 (n 82).
109.
Ibid.
110.
Ibid.
111.
Interview E4 (n 52).
112.
Interview E5 (n 82).
113.
An increase in queries from employers or take up of training was not reported during interviews with Strategic Enforcement Staff. No data was gathered on employer training courses or calls to the employer advice service.
114.
Interview E8 (n 29).
115.
Snow et al. (1986), p. 470.
116.
Interview E3 (n 60).
117.
Interview E5 (n 82).

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Transitional Justice Institute (TJI), School of Law, Ulster University, Jordanstown, UK
Deborah Magill

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Department of Law and Criminology, Edge Hill University, Ormskirk, Lancashire, United Kingdom
Alice Diver
School of Law, Northumbria University, Newcastle, United Kingdom
Jacinta Miller

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Magill, D. (2016). Justiciable Disability Rights and Social Change: A Northern Ireland Case Study. In: Diver, A., Miller, J. (eds) Justiciability of Human Rights Law in Domestic Jurisdictions. Springer, Cham. https://doi.org/10.1007/978-3-319-24016-9_7

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DOI: https://doi.org/10.1007/978-3-319-24016-9_7
Published: 13 December 2015
Publisher Name: Springer, Cham
Print ISBN: 978-3-319-24014-5
Online ISBN: 978-3-319-24016-9
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