I thought you might like to have a read of this article, to which I provide some comments.
The lawyers trying to give deaf people a hearing | Law | guardian.co.uk.
I think it’s been very well written and does explain the situation Deaf people face when trying to access legal advice services.
Last month I advised a client to settle his case for an undisclosed sum. I believe he made the right decision. We went on to sign the COT3 agreement and the sum was paid to my client.
Unfortunately, my client started to get cold feet. He was in two minds about whether he’d made the right decision to settle rather than proceeding to a Tribunal hearing. To be honest, I can understand why. Advising clients through settlement negotiations is difficult, as it relies on gut instinct i.e. mine.
What I do advise clients is this.
The starting point for negotiations is usually the Schedule of Loss, which is a document that sets out financial losses and compensation for discrimination. For unfair dismissal claims, it is usually made up of a ‘basic award’, calculated according to age and length of service at the date of dismissal, capped at a statutory maximum of currently £400 per week, and a ‘compensatory award’ made up of ‘loss of statutory rights’ and ‘loss of earnings’. ‘Loss of statutory rights’ is an amount to compensate for loss of certain statutory rights accrued with the employer, e.g. the right not to be unfairly dismissed; this is normally paid at £250. An award for ‘loss of earnings’ can be made to compensate actual net loss of earnings from the date of dismissal to the date of the Tribunal hearing.
Compensation can be awarded for injury to feelings for the discrimination suffered. How this is calculated is based on a case called Vento, which established guidelines in how to put a value on discrimination claims. There are three bands: up to £8,000, from £8,000 to £18,000, and from £18,000 to £28,000. The band each individual case is placed in depends very much on the experience of the solicitor involved in the case, and will depend on the severity of the act of discrimination and how often it occurred i.e. a one-off act is likely to attract less compensation than a series of acts over a long period of time.
Once the total value of the Schedule of Loss is calculated, this is usually the maximum figure that can be used as a starting point for settlement negotiations. Claimants are expected to mitigate their losses as far as possible i.e. get another job within a reasonable time frame as opposed to resting on their laurels in anticipation of compensation, and any welfare benefits (taxable ones such as Jobseekers Allowance or Employment & Support Allowance) claimed or earnings from a new job will have to be deducted from the total.
However, while a Schedule of Loss can be useful when it comes to settlement negotiations, it’s not the be all and end all. The respondent will have their own view on what compensation claimants are likely to get if they succeed with their claim at Tribunal, and this is more likely than not going to be a lower figure than claimed. In particular, they will have their own ideas as to what claimants could potentially get for injury to feelings if the claim is successful.
There is also the issue of merit. Does the claim have a reasonable prospect of success? If so, what is the Tribunal likely to award the claimant? If the claim has little merit, then the claimant can expect to receive no compensation or very little compensation. There is a particular risk if a lower figure is awarded during settlement negotiations than is awarded by the Tribunal; a Tribunal award could be reduced on this basis or a costs application granted because a claimant forced the respondent to go all the way to the Tribunal hearing when it would have clearly been more sensible to settle in the first place.
On top of that, we have what is known as “litigation risk”. This means basically what each party is prepared to compromise with in order to eliminate the risks associated with going ahead to Tribunal i.e. if the claimant wins, will the compensation awarded be more or less than the figures used in settlement negotiations/the Schedule of Loss? If the claimant loses, how much are they likely to have to pay in legal fees if the respondent makes a costs application? It is usually because of this risk that both parties have to compromise how much they want to settle for.
So, settlement negotiations are not easy to explain to clients. Ultimately, there has to be a degree of trust in the solicitor to be able to settle cases successfully. This proves the point that it is important for solicitors to build up confidence and trust in their clients, and any breakdown in the solicitor-client relationship can lead to difficulties when trying to settle cases.
Some of you will be aware that on 24 September 2010, RAD Deaf Law Centre’s (RAD DLC) Management Committee was formed which brought the first Deaf law centre in the UK into being. RAD DLC is also the first national law centre to be a full member of the Law Centres Federation.
Why?
Why was RAD DLC set up? It is a well known fact that many D/deaf people find it difficult to access mainstream legal advice services for various reasons, the main being that many private legal advice services don’t realise that the goods, facilities and services provisions of the Equality Act 2010 also apply to them, which means that they don’t readily provide BSL/English Interpreters or other communication support for D/deaf people, or at least try to pass on the costs to them.
In the public sector, in my experience, law centres and Citizens Advice bureaux are acutely aware of their obligations under the EqA, but due to funding, or lack thereof, are unable to provide the ‘reasonable’ adjustments required.
RAD Legal Services, of which I’ve been the Head for over one year, has gone some way to plug the gap in mainstream service provision with advisers who are fluent in BSL and able to communicate with its D/deaf clients using a wide range of technology as well as face to face. However, law centres are embedded in their communities and answer to committees of local people. They assist vulnerable people when they suffer injustice, educate people about their rights and tackle local problems. RAD DLC can do what RAD Legal Services doesn’t have the capacity to do: educate and campaign for the rights of D/deaf and D/deafblind people.
Who?
RAD DLC’s management committee has just three hearing members out of 12. The remainder are D/deaf or D/deafblind and range from Deaf professionals to service users. More details about who they all are will be revealed when the website is launched towards the end of this year.
Why is RAD involved?
There will be some critics who dislike the fact that the law centre is “RAD DLC” as opposed to just “DLC”, particularly those who don’t believe that Deaf organisations should get involved in things like this. I would like to make it clear that the management committee decided to use RAD in the title of the law centre for the following reasons:
I’d like to make it clear that the management committee has the power to decide to drop RAD from the title of the law centre at any time of its own choosing.
Next steps
At this moment in time, RAD DLC is currently undergoing a review of its strategy and direction. Once underway, there will be an official launch of the law centre and its services, so watch this space.
On 1 October 2010, the new Equality Act 2010 (“the EA”) came into force. It’s basically an amalgamation of the infamous Disability Discrimination Act 1995 (“the DDA”) with the Race Relations Act 1976, the Sex Discrimination Act 1975, and the various statutory instruments that cover age, sexual orientation, religion and belief, and brings the various strands under one roof, labelled “protected characteristics”.
In theory, it will make it “easier” for those with protected characteristics to make a claim for discrimination in the Employment Tribunal or County Court. Whether it does, remains to be seen.
As a solicitor specialising in discrimination law, this will have huge ramifications on my work. The first thing I looked at was the transitional arrangements. It’s not as simple as saying “awh, just claim everything under the EA, doesn’t matter when the discrimination happened!”. The rules are thus:
If an act or acts occurred wholly before 1 October 2010, then they will be dealt with under the old legislation. If they happened on 1 October 2010 onwards, then they will be dealt with under the EA.
What about continuing acts of discrimination though? That is to say, acts of discrimination that started before 1 October 2010 but continued after this date? It seems that these will fall under the EA.
On a practical level, I now need to edit all our precedents, although I’ll probably do this on a one-by-one basis as I don’t have the time to edit them all in one go!
One other thing. Obviously I deal with disability discrimination on a day to day basis; the main changes to the DDA are as follows:
I look forward to working with the EA and it’ll certainly make a change from working with that old dinosaur, the DDA!
“It’s not “the DDA” any more; it’s “the EA”!
It seems that at the root of everything is the absence of an Act of Parliament which enforces the right of Deaf people to use BSL. If a BSL Act was enacted, this would be the sure fire way of:
So, what do we need to do to get a BSL Act enacted?
Any volunteers to kick off the process and draft a BSL Bill?