Audrey Ludwig, Director, Suffolk Law Centre – Written evidence (YDP0069)

Submission by Audrey Ludwig, Director Suffolk Law Centre to Public Services Committee Inquiry on Transition from education to employment for young disabled people

1. Introduction

Suffolk Law Centre

We set up Suffolk Law Centre in 2018 to help meet a gaping hole in access to justice in this region, and in a county without legal aid lawyers in many areas of social welfare law. We have developed legal casework services in housing, discrimination and family together with pro bono clinics in family, discrimination, employment, immigration, housing, personal injury, wills, probate and elder care, and general law.  We hold legal aid contracts in housing and discrimination. We provide the housing court duty service in Bury St Edmunds and an information desk at family Court in Ipswich. We are currently receiving on average 150 requests a month for specialist legal advice. Our work and our impact show that our continued presence and ability to provide free, accessible legal advice and legal aid services is imperative to ensure that thousands of people are able to get expert legal advice when they need it. However there are few Law Centres outside metropolitan areas.

Suffolk Law Centre regional discrimination casework project aims to improve people’s wellbeing by addressing the legal issues of those experiencing unlawful discrimination who are unable to fund legal action themselves. Casework is funded either through legal aid or pro bono if grant funding available, at the relevant time.

Just under half the clients were and are disabled; almost all of working age. It is by far the protected characteristics that get the most requests for discrimination legal advice

Our clients are overwhelmingly the working poor, in precarious, low paid employment in cleaning, factory work, food production, caring, retail etc.

Since 2018 we have helped more than 1000 victims of alleged unlawful discrimination, either self referred or via another organisation.

Through our legal casework supporting disabled people to challenge unlawful discrimination, we identified a need to bring together the diverse grassroots organisations working with and for disabled people to form a ‘Disability Rights in Work Hub’ for Suffolk. This is financially supported by Barings Community Foundation. We want disabled people to know their employment rights, know how and when to challenge discrimination and where to get help when they need it. It is still early days on this project. Separately our colleagues at Derbyshire Law Service are developing a similar hub focusing on the legal needs of young disabled people.

SLC Discrimination Anonymised Case Studies

1. Young person in apprenticeship training programme with several others in firm. Diagnosed as autistic whilst in first months of starting apprenticeship. No RA’s put in place for her processing requirements and other autistic traits and social anxiety. Resulted in autistic burnout and period of time off sick. She was referred to and then supported by us and an Autism charity with legal advice and advocacy.

Returned to programme with new influx of apprenticeships. Reasonable Adjustments “RA’s”) put in place for phased return to work; more one to one               supervision; supervisor to undergo autism training to help them to supervise               effectively; less rigidity re billing targets whist training and training regime to               be separate from rest of apprentices; not required to attend office 5 days a               week and designated desk when does attend in otherwise hot desking office. Currently in early stages of return but hopeful of continuation of RA’s and               support in place.

Issues we tackled: rigidity of apprenticeship scheme and training groups of people done at level not manageable for neuro diverse apprentice. Young person with no support mechanism in place. Luck resulted in her contact with               autism charity and Barings  project linked us to the charity. Otherwise no support in work place or ability of young person to call out and ask for adjustments herself. Also tackled the issue of work not having training in place for people to be able to better manage neuro diverse employees. Training implemented for manager of this young person to help them better manage this employee.

2. Young person (autistic) trying to apply for work with local rail company. Unable to apply for work through online application process as unable to complete the application tests and form in time frame required by employer online. Tried to speak to customer services re this and after many attempts reached the employer’s HR team. We were told the process is now closed and next time they should ask for RA’s for the application process.

Next time came and no RA’s put in place in time for application period as took so long to get to the right person. Still online system and no RA’s offered or in place.

We gave our client legal advice.

They did not want to challenge formally as felt they would be treated detrimentally if so. But given support and tools for self advocacy with company to complain about lack of RAs

Now has direct contact details for person who can implement RA’s for them in next round.

Employer is listed is Disability Confident but not easy to get RA’s for online application process.

Front line staff who are contacted through the helplines do not appear to have               the proper training or knowledge of the EqA 2010 to offer and implement RA’s for people.

3. Young self diagnosed autistic woman struggling to get a job as could access application process. We advised and supported re application process for high street clothing retailer. She disclosed her disability as felt confident to do this following support from us. RA’s offered for interview process but she declined them as she felt she would be disadvantaged by this as would not be able to show how she can work as team.

Result was she did not get the job but felt empowered to write to employer setting her experiences to them in the process in the hope to challenge their process for others in the future.

4. Long term employee (40plus). Engaged by employer for over 19years. Adult diagnosis of autism. Previous diagnosis of other health conditions employer had done RA’s for to keep her in work. (Employee of the year for having sold over £1m of stock herself in a year). Employer failed to put in place RA’s for autism, resulted in capability management of her out of her job. Employer failed to comprehend RA’s required which were cost free and meant redefining job title and role with shift changes but no hourly reductions. Resulted in her being dismissed and challenging this. We successfully advocated for a settlement. Employer now engages Autism charity for all HR issues in area concerning this.

5. Long standing employee with long covid. Managed out of senior creative role with return to office requirements following working from home during pandemic and subsequent year as all employees were doing. Unable to return to office full time due to long covid symptoms but able to work flexibly from home. Unblemished employee record prior to this. Management changes result in disciplinary allegations being raised after long covid diagnosis. Same management ignored OH reports re RA’s and told employee to get own Dr to suggest RA’s.

Supported them and they now have new RA’s suggested but still not in line with OH reports which now say unfit for work when they previously did not say               this.  

Challenging employer to implement RA’s and facilitate return to work.

Rigidity of employer to have all return to office and work from office detriment to this employee.

Raising management disciplinary allegations to manage them out of employment.

6. Our client worked in horticulture. He had polycystic kidney disease and after a short stay in hospital, he was put on dialysis. He was unable to carry out his usual duties at work and no reasonable adjustments were made for him. Subsequently, he was made redundant for lack of capability. We challenged this, alleging this was a discriminatory dismissal. We started an employment tribunal alleging direct discrimination on the grounds of disability, contrary to the Equality Act 2010 (EqA) s.13, discrimination arising from disability (EqA s.15), and failure to make reasonable adjustments (EqA s.20 and s.21). We successfully reached a settlement.

2. General Comments

1. You cannot consider barriers to work without taking a broader perspective

•         “It is a badge of shame on our society that millions of disabled people in Britain are still not being treated as equal citizens and continue to be denied the everyday rights non-disabled people take for granted, such as being able to access transport, appropriate health services and housing, or benefit from education and employment. The disability pay gap is persistent and widening, access to justice has deteriorated, and welfare reforms have significantly affected the already low living standards of disabled people.”

(Being Disabled In Britain: A Journey Less Equal (EHRC) 2017 https://www.equalityhumanrights.com/sites/default/files/being-disabled-in-britain.pdf)

2. The ability to get into work and stay in work requires an adequate education, stable housing, accessible travel and finances for travel, clothing etc. Disabled young people are less likely to have these.

•         Across Britain in 2015/16, disabled young people aged 16-18 were at least twice as likely as their non-disabled peers to not be in education, employment or training (NEET).

•         Having a degree-level qualification can significantly improve employment outcomes. The employment gap is smaller between disabled (60% employed six months after graduating, in 2009/10) and non-disabled graduates (65% employed) compared with the gap in the general population.

•         The proportion of disabled people with no qualifications was nearly three times that of non-disabled people in 2015/16, and the proportion of disabled people with a degree remained lower than that of non-disabled people.

•         In 2014/15 pupils with identified SEN accounted for just over half of all permanent exclusions and fixed-period exclusions. Pupils with SEN support had the highest permanent exclusion rate and were over seven times more likely to receive a permanent exclusion than pupils with no SEN. This has life long impact

(Being Disabled In Britain: A Journey Less Equal (EHRC) 2017 https://www.equalityhumanrights.com/sites/default/files/being-disabled-in-britain.pdf )

•         Despite an increase in the proportion of both disabled and non-disabled adults in employment in Britain in 2015/16, less than half of disabled adults were in employment (47.6%), compared with almost 80% of the non-disabled adult population, and the gap between these groups has widened since 2010/11.

•         A new report released by the Office for National Statistics shows that autistic people are the least likely to be in work of any other disabled group. Just 21.7% of autistic people are in employment.

NB. According to the Office for National Statistics (ONS) in 2022, 22% of the working population is disabled, which translates to approximately one in five working adults.

•         The disability pay gap in Britain continues to widen. In 2015-16 there was a gap in median hourly earnings: disabled people earned £9.85 compared with £11.41 for non-disabled people. Disabled young people (age 16-24) and disabled women had the lowest median hourly earnings.

Ableism and the Labour Market Report 2022, Commissioned by Association for Disabled Professionals

•         Authored by Dr. Sarabajaya Kumar & Dr. Colin Provost University College London Department of Political Science / School of Public Policy

•         https://adp.org.uk/wp-content/uploads/2022/06/Ableism-and-the-Labour-Market-2.pdf

•         Also a podcast https://adp.org.uk/research-project/.

“Up to 48,000 disabled people managed out of work each year”

•         In 2016, the All Party Parliamentary Group (APPG) on Disability commissioned  report https://www.disabilityatwork.co.uk/wp-content/uploads/2016/11/All-Party-Parliamentary-Group-on-Disability-Ahead-of-the-Arc-Report.pdf

•         This in turn is quoted in Ableism and the Labour Market 2022

3. Why some employers are less likely to employ disabled workers than those who are not disabled?

The research briefing referenced the Disability Employment Gap report (January 2017), the Work and Pensions Committee reported the evidence that they had heard. This included the following:

•         Employers were unsure of their Equality Act 2010 duties

•         Employers were unwilling to make adjustments for disabled employees.

•         Employers may hold discriminatory or unhelpful attitudes about disabled people’s capabilities.

•         Employers can struggle to understand how disabled people could fit into their existing workforce. 

•         Anxiety amongst employers around etiquette and how to approach a disabled person.

Separately, Mencap reviewed some of the perceived extra costs that can stop organisations from employing people with learning disabilities. They reported

•         Concerns about the extra supervision and training costs that the employee may need.

•         Concerns about the cost of making reasonable adjustments to accommodate someone with a disability. 

Concerns that workers with a learning disability would represent a greater health and safety risk than other workers.

4. Disability Confident

•         DWP is responsible for the much-criticised Disability Confident scheme, which aims to help employers recruit and retain disabled employees. DWP claims to be a Disability Confident “leader”, the highest of the scheme’s three levels.

•         The DWP has been taken to the Employment Tribunal by staff almost 60 times over claims of disability discrimination in a 20-month period recorded about 2018/ The DWP, which has about 75,000 staff, has the worst record on disability discrimination of any large government department with 57 cases, compared with 20 cases against the Home Office (which has about 30,000 staff), 32 against the Ministry of Justice (about 70,000 staff) and 29 against HM Revenue and Customs (about 60,000 staff). See DWP acted 'perversely' in sacking of disabled woman, judge finds | Welfare | The Guardian

•         The report is a case we successfully took against DWP re a Disability discrimination claim in an apprenticeship designed for vulnerable people  Microsoft Word - Valentine 3400502-17 RESERVED JUDGMENT and REASONS.doc (publishing.service.gov.uk)

5. So what part does the Equality Act play?

•         In Theory: significant body of rights, even before day one of employment

•         Reality: relies on disabled person to bring claim. So depends too often on Access to Justice…… which is patchy at best and in many areas non existent

•         Those disabled people currently in low paid precarious employment are de facto worst off as:

•         Often disabled person just over legal aid limits or cannot find legal aid provider with capacity to assist

•         Less likely to be TU Member or have joined for long enough to get legal assistance

•         Cannot afford the types of house/car insurance which comes with legal expenses insurance

The legal aid means test has not been updated in line with inflation since 2009 – since then, prices have risen by 40%. This means that fewer people are eligible for legal aid each year.

In 2018, research the Law Society commissioned into the legal aid means test showed that people on incomes already 10% to 30% below the minimum income standard were being excluded from legal aid (Legal aid means test review | The Law Society  )

6. So what can be done?

•         Non means test legal aid for disabled people to get early advice reasonable adjustments and discrimination arising from disability. Could be funded by employer levy

•         Better education on disability discrimination duties. Employers still not understanding difference between Flexible Working Regulations and duty to do Reasonable Adjustments. Some education needed but also an expectation of better decision making not just a statutory defence (s109 EqA)

•         Higher ET awards for failure to do reasonable adjustments

•         Make Disability Confident independent of DWP, more robust and a requirement for large Govt contracts

7. Specific Questions Raised by Select Committee

Awareness of rights

1. How aware are employers and young disabled people of the rights of young people in the workplace and relevant duties for employers?

We know from research and our own experience that all young people generally have lower awareness of their rights and the sort of advice services that can assist them.

Key findings on a research report from 2009 “Measuring young people’s legal capability”  found:

• Participants had little or no knowledge of most basic rights and entitlements; in particular they seemed unaware of any system of civil law to which they had recourse.
• Young people's lack of knowledge of their rights/entitlements, legal processes or where to go for help impeded their ability to recognise that they were dealing with an issue with legal elements. This in turn affected their ability to plan how to resolve the problem.
• If participants did seek information and/or help, it was either in the form of information available at the point of sale in shops, for example, or by speaking to family members or friends. There was little knowledge of existing structures for advice.
• Many of participants lacked sound verbal communication skills, which seriously affected their ability to resolve law-related problems.
• Young people's preferred source of help and advice was often affected by attitudes. For example, many had a negative attitude towards professionals. Action was also affected by what was at stake and the emotional impact of the problem on the young person. The most marginalised young people reported feeling lost and helpless.

12515 Measuring young people's... report:Layout 1 (advicenow.org.uk)

A different research report from 2009 The Outcomes & Impact of Youth Advice (youthaccess.org.uk) found that:

1. The social and physiological nature of the adolescent transition leaves young people particularly vulnerable to experiencing rights-related problems and less able to resolve their problems without support.
2. Although young adults experience similar numbers of problems to the general population, the pattern of their problems differs markedly and is disproportionately focused in the core areas of work traditionally dealt with by the not-for-profit advice sector.
3. Young people’s social welfare legal problems tend to cluster with inter-related practical, emotional and personal issues requiring an integrated response from services.
4. Disadvantaged young people, such as NEETs, are considerably more likely to experience serious problems, notably homelessness.
5. Social welfare problems have a disproportionate adverse impact on disadvantaged young people. However, the evidence suggests that getting advice may have a greater beneficial impact on young people than on older adults

Each year

1.       16–24-year-olds will experience at least 2.3 million rights-related problems requiring advice.

2.       More than a quarter of these problems will be experienced by young people who are not in employment, education or training (NEETs).

3.       As many as 200,000 problems will result in young people trying, but failing, to obtain advice, often because there is no service able to help them.

4.       In all, considerably fewer than half of all young people with serious social welfare problems will actually manage to obtain advice.

5.       At least 1 million young people are left to cope with their problems unassisted.

Other relevant finding

Three out of ten young workers cannot expect an accurate payslip; one in four have experienced bullying at work.

Clearly disabled young people have additional problems and vulnerabilities, particularly relating to failure to do disability related reasonable adjustments.

We see fewer young people of working age than older age groups so the research continues to be relevant.

Possible supplementary question:

.                      What steps could the government take to increase awareness of rights and duties? Are there areas within this which should be prioritised?

1. Fund early bespoke specialist disability discrimination legal advice. Could be funded by employer levy
2. Reasonable adjustments passports. As mentioned by previous witnesses
3. Clearer guidance on the difference between flexible working and disability related reasonable adjustment -the Government (at Flexible working: Overview - GOV.UK (www.gov.uk)) do not mention that. ACAS advice is better but still does not emphasise the duty element or the onus being on the employer The right to request - Responding to a flexible working request - Acas
4. Change the current messaging which links disability solely with “benefit recipients” and set out the known benefits of employing disabled people (like on average job loyalty is greatest)
5. Many people (especially young people) are loath to self identify as disabled as consider it stigmatising so greater awareness raising about who is disabled and the positive benefits that come from declaring their disabilities to employers

Employer compliance

1. How far do employers comply with legal duties that relate to the recruitment and employment of disabled people? What happens when employers fail to do so?

Startling statistic “Up to 48,000 disabled people managed out of work each year”

•         In 2016, the All Party Parliamentary Group (APPG) on Disability commissioned  report https://www.disabilityatwork.co.uk/wp-content/uploads/2016/11/All-Party-Parliamentary-Group-on-Disability-Ahead-of-the-Arc-Report.pdf

•         This in turn is quoted in Ableism and the Labour Market 2022

We only see employees and workers experiencing difficulties. This is both with employers ignoring or not understanding their legal duties but often with employers who at leadership level have commitment and policies but that doesnt filter down to line managers, local branches or franchises (eg our clients Isabella Valentine’s experience as an apprentice with the DWP  DWP acted 'perversely' in sacking of disabled woman, judge finds | Welfare | The Guardian and Andrew Everett and Subway franchise Tribunal finds Bury Subway franchise discriminated against worker with autism (suffolknews.co.uk)

Example problems our clients experienced:

1.      Employers frequently don’t take the complaints of disabled people representing themselves seriously. They just manage the complaint away. The responses to us as lawyers is markedly different.

2.      Claimant commitment by job centre unable to be complied with due to disability.

3.      Job search training- mandatory requirement by Job Centre – unable to be accessed due to failure to do reasonable adjustment

4.      Difficulty accessing and completing application processes – no way to communicate need for RA in application process

5.      One size fits all policies re shift patterns, part time working, remote working,

6.      Line managers ignoring national employers own policies

7.      Lack of recognition of disability related sick leave and punitive sick absence policies

8.      Employers not seeing their role or duty to explore possible RA’s but leaving onus on employee (as disabled people especially young people less likely to know what could be done)

9.      Not agreeing to RA’s (eg real lack of understanding legal difference between RA’s and flexible working requests)

10.  Reasonable adjustments taking too long. No disability leave offered during waiting period

11.  Failure by employers to access Occ. Health services or engage with Access to Work

12.  Performance managing out disabled staff instead of providing RA’s

13.  Failure to apply RA’s to disciplinary and grievance policies and procedures. So eg requiring colleagues/TU Rep to accompany instead of family member or disability advocate

Possible supplementary question:

.                      How do employers engage in negotiation / conciliation processes ahead of tribunal?

It is rare for employers to engage at Early Conciliation (“EC”) stage. Have heard anecdotally that some large national companies have only 1 or 2 staff authorised to engage in EC so are just unavailable at the relevant time.

Much more common to get engagement after proceedings issued (employer consulted legal advisors), after preliminary hearing, at judicial mediation or just before hearing following exchange of witness statements.

Some of the barriers are attitudinal. A colleague at Derbyshire LC said “I find that if the employer is a family business they are particularly bad.  I find small business feel that the disabled person should "man up" or just deal with the barrier.  When I am engaging with family and small business in relation to discrimination it becomes very personal to the directors etc and this adds more issues to deal with”. My colleagues echo this experience.

Interestingly I have experienced a different form of it being treated as a personal attack by local authority managers who see themselves as being “good people” so the allegation of discrimination becomes personally offensive to them.

Enforcement

1. How effective are enforcement mechanisms relating to disabled people’s rights in the workplace?

Possible areas to explore:

.                      Accessibility of legal advice, support and representation

.                      Efficacy of tribunals as enforcement mechanisms

.                      Is there a need for an enforcement body or inspectorate in this area?

.                      Differences between how private and public sector bodies engage with enforcement mechanisms

.                      Accessibility of legal advice, support and representation

For those without trade union membership or legal expenses insurance (attached to house or car insurance) accessibility of quality, bespoke legal advice is very, very limited. Not usual for no win no fee arrangement with disability discrimination as uncertain outcome and possible cost of medical evidence. Also discrimination cases listed usually more than 3 days hearing so pro bono advocacy services like Advocate will not take them on.

The litigation process is complex, the law is complex and our typical client lacks the resources (education, comprehension, overcoming disability, confidence etc) to self represent.

Legal aid is very rare nationally both because of the means test and lack of provider base.

The legal aid means test has not been updated in line with inflation since 2009 – since then, prices have risen by 40%. This means that fewer people are eligible for legal aid each year.

In 2018, research the Law Society commissioned into the legal aid means test showed that people on incomes already 10% to 30% below the minimum income standard were being excluded from legal aid (Legal aid means test review | The Law Society

‘Serious decline’ in legal aid provision reveals extent of post-LASPO crisis – The Justice Gap

A Freedom of Information response from the Ministry of Justice shows just how illusory civil legal aid provision in England and Wales has become. The response shows how many matter starts (or new legal aid cases) were reported in the contract year from 1 September 2021 to 31 August 2022 in each category and in each geographical procurement area. 

Efficacy of tribunals as enforcement mechanisms

ETs have become very lengthy (now 2 years plus is not uncommon) and complex procedural litigation, comparable to the county court. Discrimination cases are the most complex, rarely less than 3 days final hearing and it is not uncommon for the Respondents to put the issue of disability to proof requiring a preliminary hearing. Despite this, full legal aid unavailable ~(rather casework is done on legal help which is funded at the very low rate of £43.88 per hour) and no legal aid for the hearings themselves. So the Claimant in such cases at a great disadvantage. So no equality of arms.

But also what the ETs can award does rarely address the required outcome

Under the Equality Act 2010, the employment tribunal has the power to: make a declaration of the rights of the parties involved; order the respondent to pay compensation to the complainant; and/or make a recommendation.

The median award for disability discrimination was £14,000 in 2021-22

What our clients have told us they actually need

1. Speedy and low cost/free resolution of disputes ideally at early stage
2. To stay in a job with enforceable RAs;
3. a guaranteed written reference,
4. enforceable changes to employers policies (to benefit others)

An equivalent to H&S Executive or the Inland Revenue Unit dealing with minimum wage claims enforcing reasonable adjustments might be an idea if properly resourced and with adequate powers.

Recommendation hunting

1. Improve Access to Work. Previous witnesses have given evidence of the problems.  Disabled people need to be attending job interviews with a package of support in place and funded.
2. Give a greater focus on retention - keeping people in work.
3. Fund early legal advice on disability related RA’s and discrimination arising from disability so that advisers like us can help at the point the conflict starts (best chance of retention of work) rather than when attitudes entrenched. As my colleague solicitor Richard Hinton stated “No one wants to go to ET as it is stressful and the final nail in the coffin of your employment except for the very rare occasions when there is still some form of relationship left. “
4. Extend time limits to six months to start ET’s to reflect the difficulty in seeking advice and in conjunction with greater pre litigation mediation processes

2.              How far do the rights and duties currently in place meet the needs of young disabled people? What other rights or duties would improve the situation?

1. Insufficient education/training of disabled young people on their rights and how to access advice
2. Increase the availability of early legal advice in discrimination law to disabled young people; by providing non means tested legal aid
3. Pre litigation mediation
4. Positive discrimination – explore quotas for apprenticeships for disabled young people
5. Put duties on Access to Work and JC to provide package of support for young person seeking employment

Possible supplementary question:

.                      We have been told that the current system puts too much of an onus on individuals to enforce their rights. How would you respond?

I completely agree. Disability discrimination is more than a dispute between an individual worker and employer, it is a broader societal failing. Seems to be getting worse as the rhetoric about disabled people as scroungers increases. It is akin to the “hostile environment” where the adverse consequences of being seen as disabled make people worried about disclosing it and need for RAs to employers, but law requires knowledge by employer to trigger rights. Could duty be made anticipatory?

The current system takes a toll on claimants. I did a focus group of former discrimination clients. All of them had gone onto anti-depressants as a result of the discrimination and the stress of the litigation.

Specific problem for clients with learning disabilities and autism in dealing with the litigation process and negotiating settlements. Some struggle with the abstract thinking that litigation sometimes requires, in negotiating settlements, understanding risks etc. Many find the process too complex. We did have some good success in a few cases funding a local autism advocate to act as an intermediary through the whole journey of a case. Previously intermediaries only used in hearings but find it very useful throughout the process. Sadly that charitable funding ended.

December 2023