Whose law is it anyway? The Disability Discrimination Act and the lessons I have learned in my case against the NUJ
This website was created in 2004 following the conclusion of my Disability Discrimination case against the National Union of Journalists (NUJ), when they were found guilty of four counts of discrimination, two of them “major”, and of personal injury. It tells the personal story of how I acquired additional impairments and lost my career as a journalist, and describes the major barriers facing disabled people when we try to enforce our legal rights. These barriers have since become much greater than those described below, as Tribunal applicants now have to pay £250 simply to lodge their case, while even the very limited amount of Legal Aid-funded advice available then has been withdrawn.
According to the Employment Tribunal Service, just 4% of employment claims under the Disability Discrimination Act (DDA) [now part of the Equality Act] result in a victory for the applicant, with 13% being lost, 37% withdrawn and 41% settled out of court. When a case is settled, this does not, of course, mean that any compensation was necessarily paid, and when it is, research shows that it is considerably lower than the average Tribunal award. And when a case does go to a full hearing, a disabled person still has a less than one in five chance of succeeding. There are at least thousands more complaints each year that are not recorded because a legal claim is never lodged.
Research carried out for the Disability Rights Commission (DRC) found that the three-quarters of applicants who settled or withdrew their claims mainly did so because of the potential stress and personal and financial costs of the Tribunal process, with lack of affordable access to legal advice and representation being a key factor. It is reasonable to conclude that these are also the reasons why claims are not being lodged in the first place. The DRC also found evidence that inadequate or poor advice led to potentially strong claims being withdrawn or settled rather than being taken to a full hearing, preventing important case law from being made without guaranteeing a satisfactory outcome for the applicant.
The right not to be discriminated against depends almost entirely on the individuals ability to pay
The majority of the population probably does not realise that legal aid is no longer available for representation in discrimination cases, only for a few hours of preliminary advice [this has now been cut completely]. This is further restricted by the treatment of equity in the home as 'available capital', meaning that the older a home owner is, the less likely they are to qualify for free legal advice however low their actual income is.
No win, no fee arrangements are also ruled out within Tribunals, since costs are only awarded if it is considered that the Tribunals time has been wasted - a conclusion that they are most likely to come to about the person making the complaint. Meanwhile the Disability Rights Commission funds just a handful of cases a year, and these only when the law needs to be clarified. The right not to be discriminated against therefore depends almost entirely on the individuals ability to pay for adequate legal advice and representation, rather than on the laws supposedly created to protect them.
Disabled people have the lowest incomes and highest daily living costs of any group, as well as being the most vulnerable to the effects of stress. We are therefore at a substantial disadvantage compared to non-disabled people when it comes to enforcing our rights. Meanwhile the fact that, even if a disabled person lodges a Tribunal claim, they have a less than one in 20 chance of succeeding, sends out a very clear signal to employers and service providers that the DDA can safely be ignored. The DRC research found that the only employers who were generally open to conciliation were smaller ones who lacked resources; the more powerful the organisation, the more likely they are to flout the law.
My personal experience of taking a Tribunal claim against my own union, the National Union of Journalists, bears out the Disability Rights Commissions research findings in full. This was the first case to be taken under the provisions of the DDA that cover the benefits of trade union membership, and related to the discrimination that I experienced at the NUJs annual conference in Ireland in April 2000, when I was the only wheelchair user present. At the age of 38 my lifelong connective tissure disorder was causing me increasing fatigue and pain, and I had recently been provided with a powered wheelchair by JobCentre Plus. The NUJ had, in accordance with their duties under the Disability Discrimination Act, assigned a member of staff to support me, and assured me that the conference would be fully accessible, so I was looking forward to playing an active and full role.
At this point I had been playing a leading role in equality and ethics-related work within the union for 15 years, being a past Chair of the Equality Council, a member of the Ethics Council and the founder and Vice Chair of the Disabled Members' Council, and the author of various guidelines for journalists on reporting LGBT, HIV, disability and women's issues. However, when I arrived in Ireland the staff member assigned to support me disappeared, the hotel turned out to be only accessible with assistance, the conference was laid out in such a way as to make independent access impossible, and my dietary requirements had been forgotten about, leaving me with very little to eat. Faced by continual obstructions, I was unable to make contact with any of my colleagues to alert them to my need for help. I then became seriously and mysteriously ill on the second day, and had to be flown home the next morning.
There was no response to the original written complaint that I made to the union a week or so after the conference ended, presumably in case liability was admitted. The DDA Codes of Practice [now part of the Equality Act] encourage disabled people to use internal complaints procedures first before lodging a legal claim. However, since entering a dialogue with the complainant is seen as risking an admission of liability, the stronger the case, the less likely an employer or service provider is to respond to a complaint. This renders the Codes of Practice entirely meaningless.
The submission of my original complaint about disability discrimination began a process of the NUJ sending me to Coventry which has lasted till the present day. This in turn deprived me of the support that I would normally expect from my union in the circumstances - to date there are no arrangements by the Trade Union Congress (TUC) to, for example, transfer a member temporarily to another union in order to protect their rights. I was later unable to prove that this was victimisation - it is illegal to treat anyone less favourably because they have taken action under the DDA - because no one had actually spoken to me to tell me that this was the reason why my letters and emails were being ignored . . .
Legal action is only ever a last resort, but at the same time it is often the only option
The failure to respond to my original complaint left me with no alternative apart from lodging a Tribunal claim. At no point did I ever want to take legal action against anyone, let alone my own union. However, the refusal to respond to a complaint of discrimination forces a stark choice: accept the discrimination however serious you consider it to be, or take legal action to challenge it.
All I wanted was for the NUJ to apologise and take action to ensure that the same thing didnt happen to someone else, by implementing the recommendations for staff training and so on that a professional disability consultant had made to the union two years previously. This, I believed, would have prevented the access problems I faced as a result of the conference arrangements from occurring. Later, when it turned out that my new wheelchair had been first left behind in Ireland rather than the NUJ transporting it home by road as agreed, and then was returned in pieces, I also wanted the NUJ to claim the costs of the damage under their insurance policy, which they strongly resisted for some time, leaving me immobile just when I needed the chair most. I would also have expected the union to support me during the resulting illness, including making a further insurance claim if necessary.
Throughout the time I would always have preferred to enter into a dialogue rather than to take legal action, and I imagine that my experience is typical of the majority of disabled people bringing legal claims. Legal action is only ever a last resort, but at the same time it is often the only option.
Taking a case to the Tribunal was particularly daunting because the discrimination had made me seriously ill, while Tribunal claims have to be made within three months of the discrimination taking place (another reason why many complaints never get this far). Unlike the majority of disabled people, however, I was able to gain support from my then colleague Nicholas Russell at Greater London Action on Disability, who obtained the necessary information and forms for me and assisted me in completing them 24 hours before the deadline was up.
There is no perceived benefit to an employer or service provider in taking part in conciliation
At this point ACAS, the government-funded conciliation service, automatically became involved, but the unions legal advisers, Thompsons Solicitors, refused their offers to conciliate. Again, there is no perceived benefit to an employer or service provider in taking part in conciliation discussions that may lead to an admission of liability, when the chances of a complainant succeeding in their legal claim are so low. As a result, the Disability Rights Commission research found ACAS was only involved in the minority of the cases that they looked at, despite the helpful contribution that ACAS could otherwise have made.
Since I was both unable to leave the house and unable to hold a lucid telephone conversation because of the impact of the discrimination on me, searching for legal advice was particularly difficult. This is of course a common experience for disabled people, particularly as many advice and legal services are still inaccessible themselves.
However, I was eventually able to learn about the lack of legal aid provision, the impossibility of making a no win, no fee arrangement, the Disability Rights Commissions policy of only taking cases which tested points of law, and the Bar Pro Bono Units policy of only considering cases that would last less than four days - in other words, about the complete lack of legal advice and representation available to me.
I was also, eventually, able to obtain a one-off payment of £500 from my travel insurance company to secure the services of a solicitor at the preliminary "hearing for directions", but this was all - and this in itself was far more than most disabled people can obtain. Without the solicitor, though, the case would have had to be withdrawn, as I was far too unwell to have coped otherwise.
In the process of searching for legal advice, I was also able to learn about the chaos which affected the Disability Rights Commission during the first year of its life. Two separate requests for help were lost, and only when, at the suggestion of my colleagues, I complained to the Minister responsible for the DRC did I get a reply. The majority of the DRC staff appeared to be non-disabled and to know little about disability issues, and disabilist language was used casually during telephone conversations which didn't increase my confidence in them.
A few weeks before the hearing began I was then briefly assigned a caseworker who was very helpful, but he was withdrawn abruptly when his recommendation that the DRC provide legal representation for me was turned down. (The DRC later said that the caseworker should have continued to work on the case nonetheless, and that he was withdrawn by mistake.)
It seemed to me that that the DRC were reluctant to become involved in a case that included challenging the trade union movement, possible criminal activities, and homophobia. One might have thought that these were all reasons why a disabled person would particularly merit help, especially as it was the first case to be taken under the DDA legislation covering trade unions.
In my case other disabled people again provided the answer, by volunteering to photocopy and collate case papers, organise the exchange of documents, accompany me to the Tribunal and so on. However, it proved to be impossible to enforce the legal process without the services of a lawyer, and this seems to be typical.
There is no incentive for respondents to comply with legal directions that may be damaging for them, when there are no consequences for refusing to do so
The NUJs central defence at that time was that no disability access problems had existed at their conference, and that no other disabled people had complained, so it was my word against theirs. Given the treatment that I was experiencing, I had no desire to involve other disabled members as witnesses.
But I knew that, in fact, a disabled Member of Honour had made a speech to the entire conference complaining about the access problems. At the directions hearing in December 2000 I therefore asked for copies of the tapes of the conference proceedings to be provided for me, and it was agreed by the NUJ that these would be supplied by the end of January 2001.
However, the tapes were still not forthcoming by June 2001, when with the help of the DRC caseworker I asked the Tribunal to order the NUJ to disclose them. (Without the caseworker's help, my case would have foundered at this point.) The ability of the Tribunal to make such an order was initially disputed by Thompsons Solicitors, but eventually I received copies of the tapes just three days before the hearing was due to begin.
I then found that the relevant speech was entirely absent from these copies, made on behalf of the NUJ by Thompsons. Again, other disabled people provided the answer, first by spending the weekend scouring the tapes to discover whether the speech had ended up in the wrong place. When this was found not to be the case, Joe Bidder, then Chair of the Arts Councils Disability Advisory Committee, accompanied me to the Tribunal to argue that the originals should be produced.
Once the original tapes confirmed that the speech had in fact been made at the conference, the hearing was then adjourned. This was on the grounds that my rights to a fair hearing under Article 6 of the Human Rights Act could not be protected if it continued at that time.
The Tribunal criticised the 'unsatisfactory' conduct of the NUJ and its legal advisers for breaching the directions and order of the Tribunal, ruling that this had caused me great stress - as well, of course, as prolonging the Tribunal proceedings unnecessarily. The delay in hearing the case then meant that the eventual compensation was decided under new guidelines introduced in December 2002, which set much lower levels of awards than previously. However, a subsequent complaint to the Law Society about professional misconduct only resulted in a ruling that Thompsons had behaved in exactly the same way as thousands of other solicitors would have done in the same circumstances, and the Law Society continued to uphold this position on my appeal.
And in the Tribunals final judgment of September 2004, no damages or costs were awarded against the NUJ for prolonging the legal process, wasting public money and causing me further stress. There is no incentive for respondents to comply with legal directions that may be damaging for them when there are no consequences for refusing to do so; but there is no way that disabled people can deal with this type of legal tactic effectively without representation.
Tribunal members vary widely in their understanding of the issues involved
When the hearing resumed again seven months later, in January 2002, the NUJ had changed their defence, thus rendering the taped evidence irrelevant. They had also amended their defence to include 'justification'. (The DDA is the only discrimination law that permits discrimination to be legally justified, although from 1 October 2004 the law was changed so that the failure to make 'reasonable adjustments' can no longer be justified.)
The barrister representing the union had also withdrawn and been replaced, affecting the continuity of the case still further. The Panel was also entirely new, meaning that none of the Tribunal members had been involved when the previous hearing was adjourned. In the process, a chairman from an ethnic minority background, who might have been expected to have personal experience of discrimination, was replaced by a white one.
The DRC research found that Tribunal members vary widely in their understanding of the issues involved in disability discrimination cases. This is exacerbated because disabled people who have applied to become Tribunal members have been rejected because of their impairments, and test cases have subsequently shown that Tribunal appointments are not covered by the DDA. The change in the Panel inevitably, then, must have had an impact on the final judgment.
Disabled people are particularly vulnerable to the physical and mental effects of taking a case
In general the whole Tribunal process was enormously confusing, even to someone who has a PhD in Communication. For example, I had no idea about the different types of questioning that are permissible for different witnesses. Having been told by the Tribunal that I couldnt lead my own witnesses, I assumed that this was also the case with the defences witnesses, making cross-examination totally ineffective. When the NUJs barrister discussed legal points with the Panel, I was then completely unable to follow what was being said.
I also had great difficulty in hearing what was being said, particularly as the language was often incomprehensible, and overall found having to attend the Tribunal extremely fatiguing, particularly as the hearing lasted seven days. The need to spend three days being cross-examined left me half a stone lighter in weight and suffering rectal bleeding from the effects of the stress on my stomach. Had I become too unwell to continue, though, the case would automatically have been lost.
(Similarly, in autumn 2004 following the remedies hearing I suffered from stomach pains, fatigue, and inflammation of the scar tissue from the carpal tunnel syndrome surgery that I had undergone during the previous summer. Only when I later developed an abscess in my jaw was it realised that I had picked up a bacterial infection during the Tribunal proceedings, and as a result I was on antibiotics from the day after I received the judgment. Three weeks on there was little improvement and the dose had to be doubled, substantially affecting my ability to appeal as I had been strongly advised to do. By January 2005 I still faced another three months' treatment.
Disabled people are clearly particularly vulnerable to the physical and mental effects of taking a case, and the DRC research found that many applicants reported substantial ill-effects as a result of the legal process. Defendants in disability discrimination cases are clearly aware of this, and it is easy for barristers in particular to manipulate the legal process to increase the physical and mental effects on victims, while still behaving entirely properly in the eyes of the law. It is quite impossible to give evidence effectively while feeling so unwell that you can hardly remember your own name.)
There is no substitute for properly funded legal advice and representation
Returning to 2002, disabled people continued to volunteer to support me by driving me to and from the Tribunal, speaking on my behalf when necessary and so on, while a friend who had recently retired as librarian at the Royal Courts of Justice offered to act as my note-taker. This support once again enabled me to proceed with the claim.
However, this was no substitute for properly funded legal advice and representation, particularly as I was up against a legal team that included a barrister, a solicitor - or sometimes two - and a clerk. My experience echoes the findings of the Disability Rights Commission research, which showed that disabled people taking Tribunal cases without legal representation believed it was impossible to represent themselves effectively, and that legal aid should therefore be available in all cases.
To give an example of what is required, apart from representing myself in a seven-day full hearing, I also had to produce an outline legal argument beforehand, written legal submissions following the hearing, and then appear before the Tribunal in Chambers to speak to these further. And the entire process was ruled by case law, a subject that is shrouded in mystery for anyone without legal training.
The Government believes that, rather than reinstating legal aid for representation, both parties involved in Tribunal proceedings should be encouraged not to employ lawyers. This is patently ridiculous: no one accused of an offence is going to appear in court without legal representation if they can afford not to do so. Moreover, if a defendant were denied the right to legal representation, it would breach their right to a fair hearing under Article 6 of the Human Rights Act.
In any case, it is difficult to see how a process that depends entirely on interpretation of the law by reference to case law could ever be conducted with no lawyers present apart from in the simplest of cases. Discrimination cases are the most complex of any Tribunal cases, and are virtually never simple or straightforward.
In a system ruled by paperwork and last-minute demands, disabled people are at a significant disadvantage
Producing the paperwork was particularly difficult, especially as it included having to photocopy and collate multiple 'bundles' for the defence and panel members as well. The DRC research found this to be a common experience among disabled people taking discrimination cases. Even with volunteers photocopying and collating paperwork, it was still hard to produce it in the first place, particularly as I had developed carpal tunnel syndrome following my return to full-time work in autumn 2001 and was awaiting surgery.
I also had no personal assistance available to me outside the duties proscribed by social services and the employment department, which must be a common problem for disabled applicants. And of course I had no idea what was relevant in the legal sense - the final judgment noted that some of my documentation was entirely irrelevant, but there is no guidance available to explain what is and is not needed.
And even though I eventually had representation during the remedies hearing, I was still unable to produce the paperwork effectively, with the result that I was unable to prove the bulk of my financial losses. The hearing, originally set for April 2004, was postponed until the end of August, but the surgery on my wrist was carried out as scheduled at the end of May 2004, leaving me largely incapacitated for the following months.
The effects of the surgery also meant that I found the remedies hearing even more physically taxing than previously. This meant in turn that I was unable to respond to demands from the NUJ's barrister for further documentation to be produced, because I had to go to bed whenever I was not at the Tribunal. (It was also impossible to respond to cross-examination on financial and other documentation effectively when feeling sick, dizzy and tired as well as being in pain.)
Although the union had had more than a year to ask for this paperwork, and despite the fact that they had been given the opportunity to ask for it at two directions hearings, it was not thought unfair - or discriminatory - to expect me to produce it at the last minute. In a system ruled by paperwork and last-minute demands, disabled people are at a significant disadvantage.
Society should take responsibility for enforcing the law, not the individual
No one could argue that this is a fair system. Yet the experiences of those using the County Court system to challenge discrimination by goods and service providers under Part III of the Disability Discrimination Act are believed to be even more negative. Despite the many problems with the Tribunal system, there are still calls to move all discrimination cases into their jurisdiction because Tribunals are perceived as being easier to access.
However, as County Courts at least have the power to award costs, the current system does at least allow disabled people to retain lawyers much more easily on a 'no win, no fee' basis. Victims also have longer to lodge cases in the County Court, rather than being restricted to the three-month limit imposed by Tribunals. Equally, it is hard to see how an Employment Tribunal could possibly understand the way in which discrimination manifests itself with goods and services providers.
For example, a common experience for disabled people, as with lesbians and gay men and people from Black and ethnic minority backgrounds, is to be refused service in a way that is impossible to prove. This includes the cafe where the coffee machine is claimed to be out of order, even though the room is full of people drinking coffee; the sales or bar counter where no one appears to be able to see you in order to serve you, no matter how long you wait; the items that are claimed to be out of stock, despite the fact that they appear to be visible on the shelves behind the salesperson . . .
If a shop is known to be selling cigarettes to under-16s, the only way to gather evidence of this is for the Trading Standards Agency to set up a controlled experiment and see if a shopkeeper breaks the law when a range of obviously young children are sent in. It is accepted that it is quite impossible for an individual complaint to succeed because of the standard of evidence required.
Tribunals' experience of disability discrimination is also largely restricted to recruitment and unfair dismissal cases. How, then, are they supposed to understand the impact of, for example, a shop arranging its aisles in such a way that a wheelchair user is unable to move down them, when a little rearrangement would make the premises entirely accessible?
Disabled people are not regarded by the courts as having equal rights
For example, the judgment in my own case made it clear that the Tribunal did not believe I was entitled to access the conference on the same terms as non-disabled people. The NUJ gave evidence that the conference venue could have held three times as many delegates as were actually registered, and therefore the seating could have been arranged in such a way that it was accessible to all. However, the Tribunal still ruled that it was legal to put the seats so close together that disabled people with mobility problems could not move between them in order to contact other delegates. Disabled people were not considered to have the right to participate at the same level as non-disabled people, even though there would have been no costs or inconvenience to others involved.
As a lay person, I would have thought it would make more sense to pass the responsibility for prosecuting DDA goods and services cases over to the Trading Standards Agency, particularly as what constitutes good practice in the sector is now well-established. For example, disabled people's experiences of supermarkets have improved dramatically, as the retail sector and workers have striven to implement the DDA.
Why should the victims of discrimination be left to prosecute the perpetrators? In any case, discrimination is not in itself an act against an individual, since it is based on prejudice and stereotyping rather than personal characteristics and behaviour. Society should take responsibility for enforcing the law, not the individual.
If a goods or service provider was first found guilty of discrimination in a civil public prosecution, their victims could then lodge damages claims in the County Court system if they wished to do so. Once guilt had already been proven, there would be no difficulty whatsoever in finding a lawyer under a "no win, no fee" arrangement. This would protect victims' rights and remove the responsibility for the original prosecution and the resulting stress from them.
Those found guilty under the Act have little incentive to take these judgments seriously
But even when disabled people do win their Tribunal cases, as I eventually did on four counts in December 2002, the result itself is often meaningless. In my case the NUJ simply refused again to apologise and instead offered me a settlement of £500, the minimum possible payable under the DDA. In contrast, the actual impact on my income and support costs was estimated to be at least 100 times this.
In general, those found guilty under the Act have little incentive to take these judgments seriously. The remedies hearing process required to enforce a judgment is so legalistic that it is virtually impossible for anyone to complete it successfully without proper legal advice and representation. And it is well-known that the average compensation award is so low that 'no win, no fee' arrangements are still impossible for victims who have already won their cases, since the costs of the legal work involved in remedies hearings are much greater than the amount that could be recovered.
Fortunately, and unlike the vast majority of disabled people, I was able to find a solicitor, Lawrence Davies of Imran Khan and Partners, who was effectively prepared to act without a fee in order to take the case further. However, this still left me without funding for the necessary expert reports and witnesses. This meant that my case was much weaker than it could otherwise have been, since I could only risk borrowing the money to pay for the absolute minimum necessary in order to proceed with the case at all.
The case was also weakened by the fact that I had had no legal representation up till that point, meaning that the original judgment was itself much weaker than it might otherwise have been. And I was still unable to afford a barrister, weakening my ability to put my case even further.
Perpetrators find it virtually impossible to accept their guilt
Throughout the process, the union had appeared to perceive themselves as being the victims rather than the perpetrators. Rather than accepting the fact that they had been found guilty of not just one but four breaches of the DDA and taking this seriously, they appeared to go into complete denial. This continued even after the Tribunal ruled that they were also guilty of causing personal injury lasting for several months (in reality, the impact was known to be life-long).
The press release that the NUJ circulated to members following the judgment in October 2004 led on the 'fact' that they had been cleared of deliberately setting out to discriminate against me. However, the reality was that they had never been accused of this in the first place. The only mention of deliberate intention had been when the NUJ's barrister argued that no compensation at all should be paid to me because the discrimination was not intentional. And this during the same month that the TUC called for employers to be fined and jailed if their negligence led to personal injury...
The failure to make 'reasonable adjustments', the NUJ's barrister told the Tribunal at the remedies hearing, is "not really discrimination" at all, and this appeared to be the NUJ's position throughout. The fact that perpetrators find it virtually impossible to accept their guilt has been acknowledged in previous race discrimination judgments, but there is no legal mechanism for dealing with this.
The NUJ's public position seemed to be that I should have been grateful they had agreed to make 'reasonable adjustments' and "allowed me" to attend the conference in the first place, rather than complaining because they had failed to take the necessary action to implement the adjustments effectively. There was no acknowledgment at any point of my right to participate in union activities on an equal basis with other members.
Rather, they continually referred to staff efforts to 'help', as if my participation in the conference was a favour that was being granted to me, and the staff were not simply carrying out their contractual duties. There was also no acknowledgment of the fact that I had never blamed the staff but the management for what had occurred: whatever the intentions of the staff, they had been left powerless to do their jobs properly because of management failings.
The NUJ also blamed me publicly for taking them to a Tribunal when, in fact, I had only been forced to do this by their failure to respond to my original complaint. I had made it clear throughout the process that I would be more than happy to negotiate, but this offer was continually rejected. Similarly the Tribunal actively encouraged settlement at every stage of the proceedings, but this was continually rejected as an option by the union. The only (unattributed) message that I had through a third party, immediately prior to the remedies hearing, was that the union leadership hated me.
It was later claimed by Thompsons Solicitors that the reason why my complaint had not been responded to was that the 'majority' of it was later proven to be unjustified - at least in legal terms. My original written complaint to the union had consisted of a detailed description of all the events that had occurred during the conference, and in the absence of any legal advice, I had simply forwarded the same complaint to the Tribunal.
At no point did I draw up a list of legal issues to be decided by the Tribunal, and in fact I felt that it was the sum total of my experiences that had placed me at a substantial disadvantage compared to the other delegates, rather than any incident in isolation. Had I realised that incidents could only be dealt with in isolation within the Tribunal system, I would still have been incapable of drafting the complaint in this way, given that I would have needed a detailed knowledge of case law in order to do this. If I had had access to legal representation from the beginning of the case, it seems extremely probable that the NUJ would have been found guilty of further breaches of the DDA. As it was, though, from my perspective all of the most serious complaints succeeded.
However, the NUJ's public position was that I had made a list of separate complaints, most of which were unsuccessful. The fact that both the NUJ and the TUC had previously criticised the DDA for being far too weak, and had policies condeming this and calling for the law to be made much stronger, also seemed to be ignored as they refused to acknowledge my actual success and their guilt.
The NUJ's forceful claim that they would have dealt with the original complaint had it not been so wide-ranging seemed to be echoed in both the Law Society's response to my complaint about Thompsons' conduct and the final Tribunal judgment. However, on analysis this scenario seems unlikely in the extreme. At the point when I made my original complaint to the NUJ there was no question of any criminal behaviour being involved, as subsequently emerged (see below). I also expected to make a full recovery from the illness I had sustained at the conference, so there was no thought in my mind of the NUJ being guilty of personal injury when I made the initial complaint.
Is it really credible to believe that the union's response would have been: "sorry old girl, we know that we didn't feed you properly, and the promised assistance was practically non-existent, and your brand-new wheelchair was badly damaged, and we made you ill, and this was certainly discriminatory" - if only I hadn't criticised the choice of venue and the seating arrangements as well?
Even when a case goes to Tribunal, perpetrators of discrimination can often avoid appearing and thus avoid responsibility
The union also blamed me publicly for the fact that junior staff members had been put forward by them as witnesses and therefore had had to appear at the Tribunal, despite the fact that this was again the NUJs choice rather than mine. The Tribunal had also congratulated me at the end of the hearing in 2002 for the sensitivity with which staff members were questioned by the disabled person who was supporting me, but this was never acknowledged by the union.
I felt the NUJ's choice of witnesses was particularly inappropriate because the administrative staff concerned were members of a different union (officials and management are members of the NUJ). My case was always against the NUJs management, who in fact failed to appear at the Tribunal at all. Even when a case goes to Tribunal, perpetrators of discrimination can often avoid appearing and thus avoid responsibility. Victims, though, have no choice but to face the stress of the court room.
In fact, I had the greatest sympathy for the administrative worker who had been given responsibility for running the conference. Her evidence to the Tribunal showed that she had had no committee to support her during the conference organisation and no stewards to help her to run the proceedings, both of which are common practice in other unions. Despite this, she had done her best to ensure that the conference was accessible to disabled people, and had agreed the 'reasonable adjustments' that I needed with me beforehand.
However, the evidence showed that she had also received no disability equality training; was under-resourced and over-worked; and that the staff member whom she had assigned to support me had been given other duties by their manager without informing her. And when a disabled Member of Honour made a speech to the entire conference about the disability access problems that he was experiencing, not one person had passed this message on to her.
The pressure on staff forced to appear at Tribunals can be enormous
In fact, it was the management who had failed to implement the numerous disability equality policies passed by members at successive annual conferences over the preceding ten years. It became clear from the evidence supplied by the NUJ that not a single written or training policy had resulted from these conference motions, while this would have been essential in order to implement them. Staff had also not been briefed on the implications for their work when the DDA was extended to cover trade unions in October 1999. The staff had therefore been denied the training and resources that they needed in order to comply with the law.
While the administrative worker responsible for the conference had not intended to discriminate, the NUJ's management had intentionally ignored the instructions of the union's members to introduce a comprehensive and effective disability equality policy. They had also failed to brief their staff, and failed to ensure that they complied with the law. However, the management's role in what took place, and their responsibility for it, was not recognised in the judgment because they had never appeared in the Tribunal.
Forcing staff to take the place of management at Tribunals inevitably means that those staff feel blamed in the resulting judgment. It was clear from her evidence that the administrative worker took the proceedings extremely seriously, even contradicting the statement that had been prepared for her by Thompsons when this was necessary in order to abide by her sworn oath to tell the truth. It is hard to imagine the level of pressure on a decent, hard-working woman when the Tribunal subsequently found, not only that discrimination occurred, but that it was serious enough to cause personal injury.
The DRC research found that the pressure on staff forced to appear at Tribunals can be enormous, if not comparable to the pressure on applicants. In my opinion, the administrative worker responsible for the conference was owed an apology from the union. Tribunals need to ensure that those who appear in the courtroom are the real perpetrators.
Being forced to continue to relive discrimination in a hostile environment for years after the event is another key factor in preventing disabled people from continuing with their claims
After a further two directions hearings, and the postponement of the remedies hearing twice for administrative reasons, the case eventually came back to Tribunal in September 2004 - more than four years after the discrimination had taken place. At this point the trade union representative on the Panel had retired, and been replaced by a Panel member who had had no involvement in the case previously. Since the DRC research found that Panel members' understanding of disability varied widely, this change must at some level have had an impact on the final judgment.
Being forced to continue to relive discrimination in a hostile environment for years after the event is another key factor in preventing disabled people from continuing with their claims. The emotional impact of giving evidence and undergoing aggressive and hostile cross-examination cannot be underestimated. The abuse of the discrimination is repeated in the legal process, and unlike criminal offences, there are no arrangements for victim support.
When applicants decide to settle instead of reliving of the discrimination further, any compensation paid is then accompanied by a demand that victims sign a contract agreeing to keep quiet about the discrimination they experienced. The DRC research found this to be a cause of dissatisfaction even when disabled people were otherwise happy with the terms of their settlement. This was particularly common when reasons for bringing the case included raising awareness of disability rights and thus helping to prevent the same thing from happening to someone else.
This is all too similar to sex abusers' demands for their victims' silence, which everyone agrees is further evidence of abuse. No one benefits when discrimination is hidden; agreements should be legally restricted to keeping the amount and terms of settlement confidential.
Disabled people are routinely accused of not being disabled at all
At the remedies hearing in September 2004, the NUJ began their defence by claiming that in fact I was not disabled at all. Their second barrister had also withdrawn from the case - in fact, the only continuity in the NUJ's legal team was Nicola Dandridge, Thompsons solicitors' aptly titled "head of discrimination", who seemed to be wholly responsible for the overall conduct of the case. The third barrister whom she had briefed announced that, in the past, no one had asked the right question, which was whether or not I was entitled to the protection of the law in the first place? Despite the fact that the NUJ had not previously challenged my legal status as a disabled person; that this had been recorded in the initial 2002 judgment; and that the NUJ had had four years to ask for proof of my impairments, this line of questioning was allowed to go ahead.
This is a very common experience in disability discrimination cases, with the Disability Rights Commission finding that respondents are now routinely challenging an applicants status as disabled. The research also showed that applicants whose disability was challenged by the respondent found the need to provide medical evidence of their condition costly, upsetting and stressful, and this was a major barrier to obtaining justice. The DRC found that reluctance to identify as disabled was a barrier to disabled people taking action in the first place, and that the challenging of their impairments was later a key factor in deciding to withdraw their cases.
The Disability Rights Commission found that the most common impairments among disabled people taking complaints under the DDA are back and neck problems; depression, stress and anxiety; and problems connected with the arms or hands. (It is probable that disabled people with more severe levels of impairment are prevented from accessing the Tribunal system at all, while those with less severe levels of impairment are able to pass more successfully in the workplace.)
These impairments - the majority of which I experience too - are difficult ones to prove, being left open to psychiatric interpretations that are particularly distressing. The age-old stereotyping of disabled people as lazy, dishonest, untrustworthy, evil, and trading on peoples sympathy in order to get special treatment, is also particularly easy when these impairments are involved. (Although it is difficult to see the attraction in the special treatment meted out to me by the NUJ, which could more appropriately be described as 'rough'.) At the same time, the DRC found that disabled people with stress, anxiety, depression and problems with their arms or hands had the lowest rate of success of any group of disabled people applying to Tribunals.
Having to re-argue the case at every stage in the proceedings - and having to deal with a number of different defences during this process - is yet another factor preventing disabled people from challenging discrimination effectively
In my case this was complicated by the fact that I had not seen any reason to produce specific evidence about my impairment, since to the best of my knowledge it was too late in the process to query it. This was the legal advice that I had been given when I suggested obtaining an expert report from a spinal specialist in 2003. Challenges about whether or not a person is covered by the DDA normally take place at the start of proceedings, and matters ruled upon in judgments cannot usually be overturned.
Moreover, the barrister who had represented the NUJ in 2002 had specifically stated during that hearing that the NUJ were not challenging the fact I was disabled and needed to use a wheelchair in order to attend the conference. And the NUJ had failed to ask for any evidence to be produced during the two directions hearings that preceded the remedies hearing.
However, the Tribunal refused a request for an adjournment to allow me time to provide the evidence that I now felt I needed in order to protect my right to a fair hearing under Article 6 of the Human Rights Act. (The original Panel, of course, may have taken a diferent view.)
The judgment later seemed to say that a disabled persons impairment can be called into question at any time in the proceedings when a personal injury claim is involved, without this being viewed as an attempt to question the original judgment. It is therefore the responsibility of the victim to ensure that evidence is provided, whether or not they expect to have to do so. Having to re-argue the case at every stage in the proceedings - and having to deal with a number of different defences during this process - is yet another factor preventing disabled people from challenging discrimination effectively.
As a disabled person, I was not considered to be able to contribute anything credible to the understanding of my medical records
I was then accused of consciously exaggerating my symptoms and of being a malicious liar and a conwoman, as well as having the degree of my spinal curvature mocked. As someone who can walk with difficulty - like 95% of other wheelchair users - I was also accused of not needing to use the wheelchair in the first place. (The Tribunal later seemed to agree with this, stating that my wheelchair use was the manifestation of a psychological problem.) The barrister also made continual reference to a normal MRI scan result in my records, as if this proved that I was lying about my spinal impairment.
At no point was I allowed to point out that this was a MRI test result for multiple sclerosis, not spinal deformity, and I had never claimed to have MS. MRI scanners need to be programmed to look for the condition under investigation; they are not like x-rays where the same test can be used for different purposes. Ironically, when the scan had taken place I had requested that my spinal condition be monitored at the same time, in order to discover whether further deterioration had occurred since the last scan almost 10 years previously, which had shown multiple lesions on my vertebral plates as well as Scheuermann's Disease. However, the hospital had ruled this out on grounds of cost.
The MRI scan had been just one of the many medical tests that I underwent following the onset of my illness following the conference. The most likely explanation for my symptoms was either the effects of the discrimination itself, or - as my GP later diagnosed - someone having taken advantage of the access problems to 'spike' my drink. However, it was obviously important that all other possible causes were investigated and ruled out.
I was also ignored when I pointed out that a neuro-psychologists report from autumn 2000 had been totally misinterpreted by the NUJ, with the conclusions being extended to cover all aspects of my illness although in fact they were specific to one symptom only. The judgment made it clear that, as a disabled person, I was not considered to be able to contribute anything credible to the understanding of my medical records.
This was despite the fact that in 1998 I had published a record and analysis of my medical treatment as part of my PhD thesis, and this had subsequently been excerpted for educational use in the United States, as well as being quoted and linked to extensively within the academic world worldwide. Rather, the Tribunal relied on the interpretations of the NUJ's 'expert' - who had no medical qualifications at all - and a psychiatrist who was not only inappropriate to comment on orthopaedic records, but who inevitably placed a psychiatric interpretation on them.
Before the hearing, I would not have thought it possible to hear myself first described as being intelligent, hard-working, dedicated and well-organised, and then to have this used against me as evidence of a psychiatric condition. It seems odd that it is the victims rather than the perpetrators of discrimination who come under psychiatric scrutiny in this way. The DRC research shows that similar experiences are a major barrier to disabled people pursuing discrimination cases.
It is clear that the only protection available to disabled people is a suitably experienced barrister
Since I could have faced criminal charges for defrauding the benefits and social services systems if the stereotyping of my being someone who was 'swinging the lead' had been believed, as well as losing what career was left to me following the impact of the discrimination, the stress caused by the barristers questions was enormous. The DRC research found that fear of negative publicity was another important factor in disabled people's decisions to settle or withdraw cases, and the worry that such accusations will be made more widely is intimidating in the extreme.
However, the Tribunal later found this line of questioning to be polite and permissible, even though at the same time they considered me to be extremely psychologically vulnerable. The fact that I had already been found by them to be the victim in the case appeared to be irrelevant. It is clear that the only protection available to disabled people in these circumstances is a suitably experienced barrister, particularly as there is no victim support available to pick up the pieces.
Overall, the DRC research found that applicants who represented themselves, even if they were successful at Tribunal, said that they had underestimated the legality of the process and had found it very hard to hold their ground against a solicitor or barrister. Some of them even said that they would not advise anyone to represent themselves, because legal expertise was essential to pursuing a successful case. Lack of legal representation is clearly a barrier to justice.
In a room full of white, non-disabled heterosexual people, the majority of whom were men, I was still not thought competent to have an opinion on the impact of the discrimination myself
The NUJ continued to argue that the failure to make reasonable adjustments for a disabled persons access needs, leaving them at a substantial disadvantage in comparison to non-disabled people, was "not real discrimination". After all, they argued, they had agreed to make the adjustments for me, they had simply neglected to implement them.
It was far more hurtful, they argued, for a Black person to be called a racist name in the street than to be a disabled person in my situation. The type of discrimination that I had experienced was considered by them to be entirely trivial, and I was accused of being unreasonable in pursuing my legal claim.
As a disabled lesbian, I am more than used to being called names in the street, as well as dealing with physical aggression, and am well-qualified to judge the impact of discrimination on my life. I would never seek to minimise the impact of racist name-calling - although I would point out that this is a hate crime, and is therefore not directly comparable to civil offences in any case. However, in a room full of white, non-disabled heterosexual people, the majority of whom were men, I was still not thought competent to have an opinion on the impact of the discrimination myself.
It is also hard to see why any 'reasonable' person would feel that the discrimination I had experienced was too minor to be worth complaining about. My situation involved being denied adequate food and personal assistance for the duration of the time that I was at the conference; being excluded from the bulk of the conference proceedings after I collapsed and became ill; and having my brand new wheelchair neglected and badly damaged; as well as then suffering a long illness and losing my job as a result.
However, the reality of legal proceedings is that both sides have to present and argue their case, and a judgment then has to be made about which side has done this most convincingly. Unless both sides have equal access to legal advice and representation, the advantage is with the party who has the greater access. it is clear that a strong case can be weakened and a weak defence strengthened simply by the amount of money that a defendant is prepared to spend (and no expense appeared to be spared by the NUJ).
My perception of my emotional state and experiences was seen as being completely invalidEqually, I was not felt competent to assess whether I had found the impact of the discrimination more upsetting than my GPs subsequent diagnosis that someone had taken advantage of the access problems at the conference to spike my drink. Since I was taking strong prescribed analgesic and anti-inflammatory medications, he felt that either a bad street drug or the combination of a street drug and my prescription medication had had the effect of 'poisoning' me, and that this explained my continuing symptoms six weeks after the conference. This diagnosis was supported by the medically qualified friend-of-a-friend who had met me from the plane on my return to London, who had noticed my pupils were 'pinned', but assumed at the time that my prescribed drugs normally had this effect on me.
(Years later, I discovered that, if I had been exposed to a drug, then ketamine or another variant of PCP would indeed be consistent with my symptoms, particularly as I was taking Tramadol, an artificial morphia salt, on a daily basis. The Tramadol - taken on a virtually empty stomach on the day of my collapse, as the NUJ had failed to make the promised menu arrangements to accommodate my dietary requirements - would have slowed down the process of expelling the drug and allowed the ketamine to be absorbed into my body fat, ketamine and PCP being fat-soluble. Tramadol also amplifies the impact of the serotonin and norepinephrine receptors in the brain, magnifying the effects of interaction with most other drugs. By 2014, Tramadol was known to interact with 697 different prescription drugs alone, with the vast majority of Tramadol-related deaths caused by drug interactions. In 2015, this explanation for my symptoms became even more likely when I was diagnosed as having a collagen disorder. Apart from being the underlying cause for my poor eyesight, spinal curvature, vulnerability to fractures etc, it was suggested that this makes it easier for drugs to pass through cell tissue and harder for the body to expel them.)
I had found the spiking of my drink to be a plausible explanation when the GP suggested it around six weeks after the conference, but had been far more upset by the refusal of my union to take responsibility for the discrimination and the resulting damage to my wheelchair and to apologise than by anything else. And while my GP took the view that any such spiking was probably part of a deliberate attempt to sabotage my participation in the conference, so serious were my symptoms and so hostile had been the response to my complaint, in contrast I believed that any such incident would instead be due to a spur-of-the-moment homophobic/disabilist joke. This is not to deny the fact that I had faced considerable and aggressive opposition to my equality campaigning over the years, and had previously received verbal threats. And the fact that my car was attacked outside my home hours before the first hearing began in 2001 was also troubling at the time.
It is hard - and uncomfortable - to remember just how unwell I was during the months following the conference. I was unable to hear or see properly; had no short-term memory; had no sense of time (I had never previously realised what it meant not to know which day of the week or time of the year it was); could not remember how to carry out ordinary tasks like opening a window; felt continually extremely unwell and dizzy; had very low energy levels; and was collapsing several times a day when I became clammy, grey and semi-conscious.
I was also terribly upset about the damage to my wheelchair, the possession of which had offered me complete independence for the first time in ten years (it is probably impossible for non-disabled people to understand the importance of wheelchairs to disabled people with mobility problems. Any theory which explained my symptoms, and yet did not blame my previously loved and trusted union directly for my situation, was enormously comforting at this point. However, my perception of my emotional state and experiences was seen as being completely invalid.
Inevitably, the NUJ seized on the poisoning theory as evidence of my paranoia, despite the fact that it was my GPs theory and not my own, and that I continued to make this clear throughout my evidence. But I felt I had no right to suppress this diagnosis, and to claim instead that my continuing illness had definitely resulted from the discrimination that I had experienced. Equally, had I kept quiet, it seems likely that the NUJ would then have used the poisoning diagnosis to claim that my legal case was malicious, because my medical records would have shown that there was an alternative explanation for my illness.
By the time of the first hearing - June 2001 - I had already come to terms with the fact that I would never know the exact reasons for my illness, only that it resulted from the discrimination in some way. Drug testing would have had to take place within 24 hours to confirm or refute the diagnosis medically. The NUJ had failed to reply to, let alone to hold any investigations into the matter, after I wrote informing them of my GPs opinion. And although I had reluctantly reported my GPs suspicions to the police in the belief that it was my civic duty, they had no jurisdiction in Ireland (although the police force local to the conference venue confirmed to an Irish friend that 'spiking' was common in the area).
As a long-time and committed trade union activist, the NUJ had played a part in my life that was impossible for the Tribunal to understand
It was much harder, in fact, to come to terms with the fact that my union might be directly responsible for my illness, particularly given their complete lack of concern for my situation following the conference. As a long-time and committed trade union activist, the NUJ had played a part in my life that was impossible for the Tribunal to understand, and it was hard not to feel a sense of betrayal. In a very real sense it was comforting to think that my illness was possibly due to a drunken disabilist/homophobic joke by an opportunist taking advantage of my access problems, rather than resulting directly from the treatment that I had received from my own union.
A psychiatrist agreed in court that the discrimination itself was enough to have caused an illness which could have lasted for a few weeks, but not a longer one, although he agreed it would have been exacerbated by the subsequent damage to my wheelchair. (This was why the Tribunal settled on four months as the official duration for the illness attributed directly to the NUJ.) My GP had taken a similar view i.e. that discrimination alone could not explain my continuing symptoms six weeks after my return from the conference, which was why he had sought alternative explanations.
The GP developed his 'spiking' theory after ascertaining that I had had to rely on strangers to bring me food and drinks, and that the treatment I had received during the conference was generally poor. And, of course, he was aware of the union's lack of concern for my welfare since I'd left the conference, which included a failure to check whether I had returned home safely when it was known that I was unwell and lived alone; the negligence with regard to my wheelchair; and the refusal to respond to my complaint.
However, the NUJ not only argued successfully that he was mistaken in concluding that I was drugged; they also succeeded in claiming that the diagnosis was so stressful for me that my GP himself was responsible for my continuing illness. Nothing I said to the contrary about the impact of the discrimination and the Tribunal process on my health was considered to be relevant. The eventual judgment appeared to say that, if the National Health Service is at fault at any time during a victim's treatment for personal injury, the consequences of those failings have nothing to do with the perpetrator.
As a lay person, though, it seems to me that, when a perpetrator is directly responsible for the victim needing medical treatment in the first place, then if the victim is exposed to possibly less than ideal medical treatment subsequently, the perpetrator is still responsible. After all, it was not as if the NUJ had taken any responsibility for ensuring that I was receiving the medical treatment I needed as a result of their discrimination. It seems very hard that society should have to pay the cost of medical bills resulting from discrimination, and at the same time be successfully blamed by the perpetrator for not doing a better job.
The Tribunal were happy to accept the NUJ's claims that they had changed their discriminatory practices without asking for any evidence of this
The NUJ also argued fairly successfully that the discrimination I faced at the conference was so common that a similar incident would have occurred soon afterwards and made me ill in any case. In fact, though, awareness of good practice is widespread amongst events organisers, particularly in the public, voluntary and arts sectors. I gave evidence that I had attended many comparable events both beforehand and afterwards without any comparable negative experiences, but again my evidence was felt to be irrelevant.
Certainly the standard of access at NUJ events did not appear to improve at all in the five years following the 2000 conference. During the remedies hearing in September 2004, the Tribunal refused my request to recommend that the NUJ hold a disability equality audit and provide disability equality training to the key staff involved in my case. This was on the grounds that there had been ample time since the case began for the NUJ to deal with the issues raised. But the subsequent report of the residential NUJ Freelance Conference held in Manchester in November 2004 showed that in fact no effective action has been taken at all.
Of four journalists asked to review the conference in the January 2005 issue of the London Freelance Branch Newsletter, three reported that disability access was a problem. One NUJ member was quoted as saying that: "As a professional working with blind and disabled people I was appalled. The hotel was inaccessible to wheelchairs, and so very awkward for anyone with walking difficulties that the management could well have been prosecuted under the Disability Discrimination Act."
Meanwhile the sole wheelchair user present listed the difficulties that she faced before concluding that: "Under the Disability Discrimination Act 1995, service providers need to have disability awareness training based on the social model of disability, having lifts is not enough. The union needs to get proper access audits conducted on venues by an experienced disabled person who knows the long list of checks to make, before the union confirms bookings."
Freelance Organiser John Toner is quoted as admitting: "The agency did not assure us it was accessible. It's just that we've used the (Hotel) before. If it was not accessible then it is our fault." In other words, the NUJ had not even tried to ascertain if the venue would be accessible for disabled members before booking it. Yet the Tribunal had been happy to accept the NUJ's claims two months prior to this incident that they had changed their discriminatory practices without asking for any evidence, and they had no understanding of what would be necessary to achieve real change.
Despite the criticisms made by disabled NUJ members in November, nothing had changed by April 2005, when the next annual conference was held in Scarborough. There were complaints about the standard of access in the hotels used, as well as conference arrangements that made it impossible for people with mobility impairments to participate fully. Most seriously of all, another wheelchair was injured because the lift in his hotel was so small that his feet got knocked, causing diabetic ulcers. Both he and the November wheelchair user failed to receive an apology, and subsequently lost their places as branch representatives.
There was no understanding within the Tribunal of the concept of personal assistance
Another problem with the Tribunal's ignorance of disability issues was the lack of understanding of the concept of personal assistance: they only understood a model of care. There also appeared to be an acceptance that 'care' should be provided on an unpaid basis, and the NUJ had previously argued that I should have arranged to bring an unpaid 'carer' with me to the conference if I needed assistance. This was despite the fact that they knew I lived alone and had no family.
At the hearing in 2002, the NUJ had used employment law to argue successfully that unions are not required to provide personal assistance to members if this is required for members to participate in union activities, since employers are not legally obliged to provide personal assistance to employees. Employees, of course, can obtain personal assistance through the Government's Access to Work scheme, but this only covers their work and not union activities. Disabled workers who also receive personal assistance through the community care system, as I do, rarely have any funding for 'leisure' activities.
It appears from the judgment that disabled trade unionists who need personal assistance are not actually entitled to participate in their union despite the DDA. (Ironically, most NUJ branches will pay for a professional 'carer' to allow a non-disabled member to attend meetings if they have children or elderly or disabled relatives depending on them.) However, the revised Code of Practice for trade unions issued by the Disability Rights Commission in November 2004 appeared to contradict this completely, and included three different examples of when a trade union should pay for a personal assistant to attend events, so the position is still unclear.
The model of 'care' used in the Tribunal also involved a disabled person who is completely incapable of any independent action, thought or direction - the example given in the judgment was of someone with advanced Alzheimers Disease. Comparisons were constantly made between my impairments and access and personal assistance needs and those of this mythical disabled person, rather than comparing my situation with that of a non-disabled person. The assertion was also made that disabled people with high personal assistance needs are incapable of having international careers, as I do - the fact that I personally know a number of other disabled people who fall into this category was again considered to be irrelevant.
Overall my need for personal assistance, and the very significant permanent increase in that need as a result of the discrimination, were simply ridiculed, and my Disability Living Allowance, Social Services and Access to Work assessments supporting my claim were regarded as irrelevant and unproven. The fact that, as the DRC research shows, my impairments were actually typical of disabled people bringing discrimination claims to Tribunals, rather than being different to those of real disabled people, also appeared to be irrelevant.
The law sends out a mad message: we are equal, but at the same time, we are totally invalid
And this, of course, goes to the heart of the problem with the Disability Discrimination Act. As well as denying us our expertise on our impairments and our access needs, disabled people ourselves are felt to be incapable of judging whether or not we are being discriminated against, and how serious we consider that discrimination to be in the light of our daily experiences. It is the ultimate disempowerment. The law sends out a mad message: we are equal, but at the same time, we are totally invalid.
In fact, as soon as we identify as disabled, we appear to have no credibility as witnesses in any respect. At no point during the Tribunal proceedings did I feel that my CV and professional background were taken into account when my credibility as a witness was being assessed. Ironically, only the fact that I was female, homosexual and disabled seemed to matter - and disabled dykes seem to have very litte credibility indeed in the eyes of the law.
Along with the denial of our own expertise, there is widespread ignorance of the effects of disability discrimination, while we are left without the necessary funding for experts to argue our case for us. And who can these experts be in any case but other disabled people, who in turn have similar credibility problems to ourselves?
I had previously searched for someone who felt that they could act as an expert witness without success. The only consultant who had got as far as quoting a price assessed that it would cost £4,000 for them to prepare the evidence properly - a price which I thought was reasonable, since disabled people should not have to subsidise the costs of discrimination, but was quite beyond me to pay.
Disability discrimination is not considered to be real discrimination in the minds of Tribunal members
The remedies had begun on the Tuesday following the 2004 August Bank Holiday. At the beginning of the Friday afternoon, when it had become clear that the NUJ would be found guilty of personal injury, I was offered £20,000 to drop the case. This was clearly more money than I could expect to receive in the judgment, as the NUJ had argued successfully by this point that it was my GP and not my union who was responsible for my continuing poor health. However, the offer was not only accompanied by a continued refusal to apologise, but also by a demand to sign a secrecy agreement.
I had never discussed settlement terms with my solicitor, because Thompsons had informed him immediately before the hearing that they had no intention of settling on any terms. By the Friday afternoon I was too unwell from the demands of the hearing to discuss it, but decided that an apology was more important than any amount of money. Equally importantly, signing a secrecy agreement would be contrary to the NUJ's membership rules about preserving freedom of information, and throughout the case I had always acted in accordance with the NUJ's rule book. By the end of the afternoon, the offer had been withdrawn again.
Six weeks after the end of the remedies hearing, I received the judgment. Few people realise that, following a ruling by the Court of Appeal in the Vento sex discrimination case in December 2002, there are now strict guidelines for assessing damages for discrimination cases. Compensation awards are now so low that they rarely cover the cost of legal advice and representation - it is estimated that the average cost of taking a properly prepared discrimination case is £25,000.
However, £25,000 is now the very most that can be awarded for injury to feelings, which are generally the only damages involved in discrimination cases. The maximum amount (between £15,000 - £25,000) is then only awarded for very serious cases lasting a period of years: 'serious' cases are awarded between £5,000 and £15,000; and 'less serious' cases are awarded between £500 and £5,000.
In my case the injury to feelings was felt to fall into the least serious category of discrimination (between £500 to £5,000), and I was awarded £4,000. This was despite the facts that the union had been found guilty of four separate counts of discrimination as well as personal injury, and that this had been done to me, not by an employer, but by the trade union who was trusted - and contracted - to protect my rights. Obviously disability discrimination is not considered to be real discrimination in the minds of Tribunal members.
Similarly, the compensation payable for the personal injury was set at just £4,000. This was then reduced by 50% to £2,000, because the NUJ had argued successfully that the whole of the access problems at the conference had contributed to my illness, not just the four incidents that had been found to be illegal. Bizarrely, even though the Tribunal had previously accepted the NUJ's denial that these problems had existed or had been at all significant, they were still held to have contributed to my illness.
There were no damages awarded at all for the NUJ's failure to apologise and the resulting hurt this had caused me. Similarly, there were no damages awarded for the 'unsatisfactory' conduct that had caused a seven-month adjournment on human rights' grounds, even though the previous Panel had ruled that this had caused me extreme stress.
The so-called compensation culture is a myth
The average award for the less than one in 20 disabled people who succeed in their discrimination claim is between £5,000 and £7,000 in total, showing that Tribunals rarely consider disability discrimination to fall into the same category as race and sex discrimination. My award of £6,000 was therefore absolutely typical. (Of course, it is hard to know how different the award would have been if the case had concluded in 2001, pre-Vento and with the original Panel and defence.)
However, the sum represented only 1% of my losses as assessed by Imran Khan and Partners. It is reasonable to conclude, then, that the vast majority of disabled people taking discrimination cases never receive anything like the amount that they have lost as a result of the discrimination.
The so-called compensation culture is a myth; no one takes a case like this for the money. This was confirmed by the DRC research, which found that, as in my case, a desire for justice rather than financial compensation was the most common reason for a disabled person going to a Tribunal. However, it seems entirely wrong for the victim and society to be left to pay the costs of illegal discrimination.
In total then, and including interest, I was just able to cover the direct costs of the remedies hearing. In this I was fortunate, since the cost of a single medical expert's report and subsequent testimony is around £4,000, even if this is simply needed to prove that a disabled person is covered by the law. Many disabled people, of course, need more than one report.
Since the guidelines for injury to feelings compensation start at £500 and personal injury compensation at £3,000, the 'Vento' guidelines show no recognition of the costs involved in proving disability discrimination. Unlike disabled people, people involved in sex and race discrimination cases do not need to prove their gender or ethnicity, but this was ignored when the Appeal Court decided to set the same guidelines for compensation in all discrimination cases.
The actual cost in terms of my time, not to mention the time of all those who volunteered to help me, is inestimable. And of course the enormous impact on my income and living expenses of the discrimination itself - being unable to prove this legally does not, unfortunately, prevent it from being true - has not been mitigated in the slightest. In 2014, ten years on, the additional impairments and support needs I had acquired as a result of the conference had not diminished in the slightest, and continue to cost taxpayers and council taxpayers many thousands of pounds a year in benefit income and care provision.
The Disability Rights Commission research found that the majority of disabled people who took discrimination cases perceived the long-term impact on their lives to be negative. Even if their case had been successful, many were left with large legal bills that they could not meet in the short term.
Many felt that they were even more likely to be excluded from the labour market as a result of taking the case - in my case, through being 'blacklisted' by the NUJ and having my journalism career terminated as a result. Others had found the process so stressful that they said they would not have taken the case at all if they had realised what was involved. There were also those who believed that the impact had affected not only their own physical and mental well-being, but that of their friends and family.
It may be illegal to discriminate against disabled people, but it is nonetheless not felt to be serious enough - nor is the victim taken seriously enough - to merit an apology
In my case, the most hurtful aspect of the whole episode was the lack of an apology. I felt particularly strongly about this because, as an elected representative, I was not simply present at the conference as an individual. Instead I was representing other disabled members, and was responsible for arguing motions on behalf of the Disabled Members' Council as well as representing the Equality Council.
The NUJs (third) barrister told the Tribunal that the discrimination had occurred because of a series of cock-ups - it was not a conspiracy. (Not that anyone but my GP had ever suggested that there may have been a conspiracy in the first place.) Surely, then, an apology should be expected, all the more because the discrimination was due to negligence rather than being deliberate?
However, the judgment seemed to suggest that I did not deserve to be apologised to. Indeed, despite everything, the judgement criticised my lawyer for his intemperate language in suggesting that the NUJs behaviour towards me had been continuingly and unforgivingly hostile throughout the proceedings. It may be illegal to discriminate against disabled people, but it is nonetheless not felt to be serious enough - nor does the victim seem to matter enough - to merit an apology.
Who, then, benefits by the current system? For disabled people, and for all those covered by discrimination legislation, having rights on paper is meaningless without recourse to the necessary funding to enforce them. In fact, as the DRC found, disabled people are actually damaged further by the process of even trying to enforce our rights.
If we believe as a society that discrimination is wrong, then surely it is societys responsibility to enforce minimum standards, rather than leaving it to the victims? Equally, since the vast majority of DDA cases coming before Tribunals involve disabled people losing their jobs and subsequently being supported by the state, there would be a considerable cost saving if rights were easier to enforce.
If discrimination law really worked, we would all be glad of it
The importance of government policy and funding, together with adequate and appropriate education and training, cannot be overstated when it comes to tackling prejudice, ignorance and discrimination. However, as a society we also need to pursue effective and punitive action against those who contravene the minimum standards laid down by law, ensuring in the process that the perpetrators meet the full costs of their actions rather than the public being charged.
Only once discrimination has been proven should it be left to the victims to pursue damages claims through the County Court system - when it would then be possible to secure representation through a 'no win, no fee' arrangement. Since what constitutes good practice is already well-established, it should also be possible to take prosecutions based on complaints about policies, practices and procedures, rather than waiting until is possible to prove that an individual has been hurt by these. However, in addition there needs to be a system where court action is the last resort, not the first, which would lead to vastly reduced public costs as well as causing far less stress to all those involved.
If discrimination law really worked, we would all be glad of it, not just the so-called 'minority' groups. Most of us will become disabled at some point; all of us will become old; and any of us could find ourselves being discriminated against. If that happened, who would want to go through the experiences - underlined as being typical by the DRC research - described above?
It is impossible to separate the reasons why people are discriminated against into boxes marked variously disability, sex, race, sexuality, age and so on
We also need to change the law in order to acknowledge the effects of multiple discrimination. It is impossible to separate the reasons why people are discriminated against into boxes marked variously disability, sex, race, sexuality, age and so on. As a disabled gay woman, I felt that homophobia and sexism played a large part in both the discrimination and my experience of the legal process, although I had no opportunity to say so.
For example, despite my GP stating that I was in excellent physical and mental health at the time of the conference, the Tribunal still concluded that at the time of the conference I was psychologically fragile. This was despite another witness with medical qualifications confirming the GP's opinion, and despite a highly qualified counsellor giving evidence that in over 30 hours of appointments with me, she had found no signs of my ever having suffered from mental illness. (I had sought counselling in order to come to terms with the wide-ranging long-term effects of the illness on my daily life.) It is hard to escape the conclusion that, somewhere along the line, homosexuality - and particularly lesbianism - is still being linked to psychiatric disturbance.
I also question whether a white GP would have been accorded more credibility as a witness than my well-respected devout Muslim GP, and whether a key witness and my counsellor would have been accorded more credibility had they not both been disabled lesbians themselves. For example, the evidence of the NUJs white expert at the hearing in 2002 was preferred over that of my GP's, even though the former had no medical qualifications whatsoever.
Equally, evidence which was given by a medically qualified witness that a particular doctor I had seen, and whose notes were used against me by the NUJ, was homophobic, was not challenged within the Tribunal. However, it subsequently appeared merely to be noted in the judgment, and then completely ignored. The doctor's notes - never intended for a court room in the first place - were consequently relied upon in full within the judgment, despite the fact that the evidence showed them to be tainted.
The data collected on Tribunal cases is broken down into gender and class, but there appears to be no monitoring of the impact of age, sexuality and ethnic background of applicants taking disability discrimination cases. It is therefore impossible to judge how sexuality, age and ethnic and cultural issues are impacting on an applicant's experience of discrimination and the legal process. It is reasonable to suppose, though, that applicants taking cases under the new sexuality and age discrimination legislation will find the process at least as difficult as disabled people, and that multiple discrimination will impact on this still further.
It has never been more important to raise disability issues with trade unions
For myself, though, I have no regrets about taking the case. Trade unions play a vital role in combating discrimination, both in the workplace and elsewhere, and are generally the only body in a position to provide advice and representation for members complaining of discrimination. The Disability Rights Commission (DRC) even had an official policy of refusing to help disabled trade union members with employment problems, since this should be covered by their membership.
Yet unpublished research shows that very few discrimination cases are currently being taken on behalf of their members by trade unions, while the DRC research quotes a number of disabled people who felt let down by their unions following discrimination incidents. This is despite the fact that, for example, the NUJ spent over £628,000 on providing legal advice and assistance to its members during the year that the conference took place - two-thirds of the total spent on membership benefits.
It is not that trade unions are refusing to take legal cases on behalf of their members, but that they are largely failing to include discrimination cases within this. One reason given is that unions regard discrimination cases as only affecting the individual concerned, rather than acknowledging the wider effects and implications for society. However, the vast majority of the legal cases that unions do take on behalf of their members only affect the individual concerned, so this cannot be a genuine reason.
Another reason given is the high cost of taking a discrimination case compared to the compensation that can be recovered. However, when the legal costs are paid as part of the benefits of union membership, the whole of the compensation that is awarded will then be received in full by the victim. Again, the comparitive costs of the case compared to the compensation levels cannot be a genuine reason for failing to fund discrimination cases.
The fact that the NUJ had not taken action to turn any of their annual conference motions on disability equality into policy, and their conduct of this case, underlines that trade unions are failing to take discrimination seriously. Unless and until they do so, disabled people will have no realistic chance of enforcing our rights. Whether or not the Disability Discrimination Act is replaced by more comprehensive, and potentially more effective, legislation - as the TUC and disability rights campaigners want - it will make no difference unless the support is there to implement it.
And while the TUC called for employers to be fined and jailed for negligence leading to personal injury, and also supported changes in the law to force employers to meet the cost of NHS treatment in these cases, they remained silent on what should happen when the negligent organisation causing the injury is a trade union. Thompsons themselves told the Law Society during my complaint about their behaviour that, although they advertise as only ever acting for the victims of injury, this is not the case when the perpetrator is a trade union.
In the meantime, disabled people continue to face mass unemployment. Half of all disabled workers are unemployed, largely because more than half of everyone who becomes disabled loses their job within two years, while a third of all disabled people who do find a job lose it again within 12 months. Meanwhile benefit cuts have increased poverty amongst disabled people and their families still further since my case concluded.
It has never been more important to raise disability issues with trade unions - even if, as in the case of the NUJ, they are unwilling to listen, and perhaps especially then. No one should have to go through the experiences described above in order to challenge discriminatory treatment. No one should be left, ill and unemployed, always regretting that they did not even have the opportunity to challenge the discrimination they experienced.
I never recovered from the injuries sustained at the 2000 conference, which permanently affected the working of my lower brain but not, thankfully, my intelligence or personality. My blood pressure became permanently unstable, meaning that medications to treat low and high blood pressure are both unsuitable and that I can become ill very suddenly. My ability to focus on sound was lost, making it difficult for me to understand unfamiliar voices and to hear against background noise. I am similarly unable to process what I am seeing automatically, meaning that I have difficulty in processing visual information, particularly in unfamiliar settings, and in recognising even very old friends. My ability to recall words and memories, and to make mental connections automatically, was also affected. After I passed the menopause in 2007 I also lost the ability to control my core body temperature, and remain on permanent medication for this.
All this in addition to my original impairments made it unsafe for me to go out and about independently, as well as making it difficult to use the telephone. This leaves me effectively housebound and isolated when not at work, when JobCentre Plus provides me with assistance. I am dependent on social services for support otherwise, which is increasingly inadequate as the cuts continue to bite. Discrimination hurts.
Monitoring the Disability Discrimination Act (DDA) 1995 Phase 3, Hurstfield J, Meager N, Aston J, Davies J, Mann K, Mitchell H, OReagan S, Sinclair A, Disability Rights Commission, 2004.
© Ju Gosling 2004
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Thanks to: Julie Newman, Roisin Battel, Rob Macgrory, Shola Adewale, Sally Phillips, Joe Bidder, Meena Sarim, Nicholas Russell, Kirsten Hearn, Lee Elliott, Matthew Glamorre, Rosie Fitzharris, Desmond Foster, Frances Blackwell, Barry Sullman, Robert Good, Jonathan Whitehead, Lawrence Davies, Regard; the staff at Greater London Action on Disability, London Disability Arts Forum, British Council of Disabled People, Arts Council England, Artsadmin, Jacksons Lane, Graeae, Oval House, Shape and Drake Music Project; and those too numerous to mention who supported me with emails, phone calls and in many other ways - I couldnt have done it without you.
Update: In 2004 I was invited to join the Executive Committee of TUDA (the Trade Union Disability Alliance), an organisation that brings together disabled trade unionists from a wide range of unions from across the Labour Movement. I was later elected Co-Chair, alongside Caroline Gooding who had been Head of Legal Policy at the Disability Rights Commission since its beginning, and who had authored much of the DDA. In 2006 I helped to launch the Trade Union Charter for Disability Equality, facilitating unions to make an explicit commitment to uphold the terms of the Disability Discrimination Act in a 'Social Model of Disability' context, and to promote disability equality among and for their members.
I finally retired from TUDA in April 2009, after 25 years of promoting equality issues via trade union activism. Then, as now, I was still ostracised by my union and had never received an apology. As a result I had been virtually unable to obtain any work in journalism for nine years, and was reliant on state benefits to top up my earned income. I had never recovered my full health, and continued to live a much more restricted life with far higher support needs than previously. I had, however, been able to develop my career as a fine artist - a field where trade unions do not operate - and had continued to be involved in the disability rights movement. My union membership was finally 'lapsed' by the NUJ in 2013, when I was too poor to prove exactly how low my income then was.Anita Halpin, the NUJ's self-identified Communist Treasurer who had accused me of trying to profiteer from the union, and who had been heavily involved in the conduct of the case, made news headlines herself in 2006 when a painting was sold on her behalf for £20.5 million. "Berlin Street Scene" by Ernst Ludwig Kirchner had hung in Berlin's Brücke Museum for 26 years where it was widely enjoyed by visitors, but was then claimed by Ms Halpin as the heir of the family who had originally been forced to sell it to the Nazis. At the time Ms Halpin was also reported to be seeking ownership of other paintings in the public realm, totaling £100 million.>
In September 2011, the Equality and Human Rights Commission published a report which for the first time exposed the fact that disabled people experience repeated harassment, abuse and violence, often on a daily basis, to the extent that this has become normalised. The NUJ's failure to investigate my GP's belief that I had been assaulted had been regarded as being entirely reasonable by the Panel, who agreed with the NUJ's defence barristers that 'no one would wish to harm a disabled person'. (This presumably was a reason why the Irish police also failed to investigate, along with their expressed wish not to damage tourism.)
Disability hate crime, now believed to be by far the most common form of hate crime (particularly when disabled people are also lesbian, gay, bisexual, transgender and/or from a minority ethnic group), was not even recognised in law until 2003, a law which did not come into force until 2005. However, the failure to recognise disability hate crime as existing at all was a principle reason why my lasting impairments as a result of the incident were attributed by the Panel to psychological causes, with the blame placed largely on my GP for 'upsetting' me with his diganosis. Today, the increasing evidence about Tramadol drug interactions and the prevalence of disability hate crime make a psychological cause for my illness and subsequent impairments seem increasingly unlikely, unpleasant though experiencing the discrimination undoubtedly was at the time.
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