There are two reasons for my apparent quietness.

Firstly, Rachel, Corey, Bump and I upped sticks from our 3-bedroom terraced house in Oakdale to a 4-bedroom new-build detached house in Abercarn.

Moving house is something I would not want to repeat. While the move in itself went well, it was a mammoth task as it took 5 trips in a Transit-sized van as well as 4 cars making several trips to move all our stuff, taking up a huge chunk of a day and an hour or so the next.

Needless to say, we love our new home and have been busy ever since putting our stamp on it. It’s so lovely to have the extra room.

The second reason is a shame. Following my post “Are there any Deaf left?”, someone took it upon themselves to contact my employer to complain about some of my comments.

Now, in hindsight I do understand that some of my comments in that post are somewhat controversial and that given my senior management post within RAD, I should have been more mindful of any implications this would have on RAD’s work and in particular the work of my colleagues on the senior management team. Lesson learnt.

What I was rather dismayed about was the fact that my comments about hard of hearing were seen as “discriminatory” and that hard of hearing people should think twice about coming to RAD/me for legal advice. I believe the two things (my views on hard of hearing people belonging to the Deaf community / their right to receive free legal advice) are completely separate. I have and do provide many hard of hearing individuals with legal advice, and have no qualms in doing so. This was rather a wake up call for me, and something I won’t be in a hurry to repeat, given my exposure to the Deaf community and the fact that hard of hearing people can access my services.

It’s a shame that my “voice” has to be stifled somewhat, but you know what? There’s more important things to concern myself with. There’s a lot more I can talk about than not without compromising my position as a senior manager and as a solicitor.

Let’s see what drivel I can come up with, eh?

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.

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:

It was an employee of RAD, i.e. me, who was instrumental in setting up RAD DLC in the first place;
It is a recognition of the support being provided to the law centre by RAD i.e. finance, HR and most importantly, staff such as me and other caseworkers; and
RAD is recognised as the only provider of legal advice services for the Deaf community in the UK; having such a close association will be beneficial for the law centre and avoids having to promote a completely new organisation from scratch.

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.

I’m the only solicitor working for RAD at the moment, with a small team of caseworkers. As such this means when I take leave, there’s no one to take up my mantle in my absence. That in turn means I don’t usually get the opportunity to take leave without the inevitable email or deadline that simply can’t wait till I’m back at work, with the result that, you’re right, work invades my leave!

Take Friday as a case in point. I took the day off to drive myself, Rachel and Corey to Ipswich for Fellow Welshman and Suffolk Terp’s (thanks Deafinitely Girly for the anonymising peeps idea!) New Year’s/Engagement/New Job house party.

On Friday morning I was on MSN talking to a client about a Respondent’s draft Chronology and Facts which had been emailed to me around 5pm on Thursday to which a deadline of noon on Friday had been imposed to respond to with any issues, and phoning the Respondent in the same case (via my FT terp on MSN) to chase a response to our without prejudice offer of £15,000, who said they were still awaiting instructions from their client.

In the middle of all that, I had to go to the doctors to make an appointment for Corey, and then take him down for his appointment at 11.20pm. (He had a hyperventilatory infection but is ok now).

Before we left home at 12.20pm for Ipswich, the Respondent replied with a counter offer of £2,500, and I asked my client for his instructions.

By the time we arrived at a services on the M25 at around 3.45pm I still hadn’t received any instructions so chased client who instructed me to make an offer of £10,000. The Respondent then offered £5,000 which was accepted. It was 4.35pm at that point. We then had 25 minutes to agree the COT3 wording and make a full and binding agreement by 5pm so the ACAS Conciliator could inform the Tribunal that the case had been settled and the hearing listed for Monday vacated.

Talk about a stressful 25 minutes, particularly as Respondent threatened to withdraw offer if didn’t settle by 5pm.

All this on my day off!

40-50 is what is usually considered “manageable”. I normally have around 60 at any one time.

In comparison, the management side of things is a doddle!

As I am actually feeling the stress (literally) for the first time ever, I’m uncertain how to handle it. So I looked up “stress” on the NHS Choices website to find out more. It seems that there are two sets of symptoms: mental and physical. I don’t think I have any physical symptoms (apart from the usual headaches), so the mental ones are:

anger
depression
anxiety
changes in behaviour
food cravings
lack of appetite
frequent crying
difficulty sleeping
feeling tired
difficulty concentrating

I would say that anger, anxiety and tiredness are my main symptoms. I have cravings for chocolate, but that’s nothing new!

Now. The key is to manage the stress levels. Any tips welcome.

Naturally, I’m thrilled to bits for them, particularly as they’re both first time mums and I recently became a dad, so I do know what it’s like in terms of excitement and anticipation, and how fab it is to be a parent. Obviously, I don’t know what it’s like to carry a baby (!) but I do know what Rachel went through and have witnessed a labour first hand!

The weird thing about all this (yes, I’m getting to the point of this post now) is that while I’m absolutely thrilled for both of them, it’s also my worst nightmare! Both of them are valuable members of my team, and when they are both on maternity leave, I don’t know how we’re going to cope!

I know I’m being irrational, because the team as a whole is full of hard working individuals and we’ll cope just fine. That’s not to say it ain’t going to be a challenge, but bring it on! I’ve already got contingency plans in place.

One last thing, huge, huge, huge congratulations to them both! Enjoy the experience!

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:

1. Disability-related discrimination has been scrapped. This is good news because the judgment made by the House of Lords in the London Borough of Lewisham v Malcolm [2008] case made it extremely difficult for claimants to succeed under this part of the DDA, and has now been reversed by the EA with the new concept of discrimination arising from a disability. If any of you want me to explain what was so damning about the Malcolm case, comment and I’ll explain.
2. The introduction of indirect discrimination to disability discrimination, bringing it in line with the concept already familiar in in sex and race discrimination.
3. Harmonising the thresholds for the duty to make reasonable adjustments for disabled people.
4. Making it more difficult for disabled people to be unfairly screened out when applying for jobs, by restricting the circumstances in which employers can ask job applicants questions about disability or health.

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”!

We know that there are even fewer Deaf lawyers undertaking advocacy in tribunals and court.

I’m one of them. As an employment solicitor, I undertake advocacy in the Employment Tribunal on a regular basis.

Now, bear in mind that I’m profoundly Deaf and my first language is English as opposed to say BSL. I am a fluent BSL user, equally comfortable with spoken English. However, I’d be the first to admit that I do not have perfect speech; I’ve never actually *heard* a word so go figure. My voice is rather high pitched, and I tend to trip over my words from time to time or mulch all the words into one big mush as I don’t allow time to elocute-each-word-fully.

A weird byproduct of my “imperfect” speech is that some people understand me, and some don’t. I find I’m sometimes able to identify who falls into these categories: females in the former, and males in the latter; individuals who know how to LISTEN and those who don’t.

So, I undertake tribunal advocacy with imperfect speech. I hear you say: “that’s easy! Just use BSL!”. Well, yes, I could, but that would mean translating complex legal principles etc. into BSL and then hoping, just hoping, that the interpreter will be able to grasp the legal principle as well as the point I’m making, and voice over that in a way that is appropriate for such a situation i.e. formal language with legalese thrown in.

Are there actually any interpreters out there able to do this for me? And can they go to each tribunal regardless of location within England and Wales to do exactly that? I doubt it.

So, therein lies the problem. How does one solve it? Answers on a postcard please.

Apparently, where I’ve been going wrong is to discuss both supervision AND management issues in a supervision session. This begs the question: “what’s the difference between the two?!”.

Management issues are the usual run of the mill, day to day things like annual leave, toil, outreach, general admin etc., whereas supervision should be focusing on the individual supervisee; their wellbeing, personal development and training, feedback from clients – both positive and negative – and have to be linked to the organisation’s overall strategic objectives. Phew!

I’m on another course today, “Non-employment discrimination”, so a return to more “legal” matters!

Back (L-R): Desmond Masterson, Laura Eadsforth, Daniel Webster, me, Shaunett Harris, Riccardo Hoyte.
Front (L-R): Amanda Everitt, Rose Hawes, Paul Lennon, Lianne Lusty.

This photo was taken at the RAD Staff Conference on 5 June 2009.