Tuesday, 23 December 2014

Leigh Day: Working through disability

As an employment and discrimination lawyer specialising in disability, and as a disabled person myself, I have often reflected on the fact that unlike most of the other personal characteristics protected in law (such as gender, religious belief and race), disability is one of the human conditions that can happen to anyone at any time. People with spinal cord injuries, many of whom are catapulted from able-bodied life to facing a future with severe disabilities in literally the blink of an eye, know this all too well.

As someone born with disabilities, I have not had to cope with the loss of a fully functioning body. I do, however, have some experience of how complex and difficult the relationship between one’s body and one’s identity can be (and of course this is something we all grapple with to some extent, whether disabled or not). I imagine that for many people with spinal cord injuries, the impact of their disability on their sense of self may be particularly profound given the huge physical and psychological adjustments that sudden disability requires.

Which is why work can be such an important building block in re-constructing a fulfilling life and positive self-image. While the financial independence that (decently) paid work brings is of course important, other benefits such as the self-esteem that comes from making a valued contribution, and the opportunity to contribute meaningfully to the world beyond your front door, can be crucial. For disabled people, disability will always to some extent shape our experiences, but having strong other identities – as parents, lawyers, teachers, writers, IT technicians, secretaries, librarians or whatever – reminds us that we are much more than the sum of our physical parts.

Helping people with disabilities to assert their rights effectively in the workplace is some of the most important work we do in our employment practice at Leigh Day. We see at first hand how all too often, people with disabilities face real but unnecessary obstacles in the world of work. This might take the form of being excluded from career development opportunities (for example because the selection process for a promotion disadvantages someone with dyslexia, or because of travel requirements), or not getting a job in the first place because of prejudice, or anything in between.

Inspired by our work helping individual clients to challenge discrimination, we decided to commission some original research into the experiences of disabled people in the world of work, to see if the issues faced by our clients reflected more general patterns. Our findings, described in our recently published report The Purple Workforce,[1]  showed a mixed picture. Some responses were really encouraging. For example a significant majority said they felt supported by colleagues and managers. And 65% of respondents who asked for disability-related adjustments to their working arrangements got all or some of what they asked for. 

However other findings were less positive. Nearly half of our disabled respondents said they would not feel comfortable disclosing their disability when applying for a job. 20% of disabled respondents felt they had suffered discrimination at work, and 15% felt they had experienced discrimination when applying for jobs. Of those experiencing discrimination, 20% said that their health had suffered as a result.

While these findings reflect the fact that disabled people still face significant barriers to and in employment and that there is much still to be done to achieve full equality, overall I am optimistic. From my work with disabled clients I can say with some confidence that when people know their rights and are able to articulate them effectively (assertively but constructively), many employers are ready to do the right thing. This isn’t to say that rampant prejudice isn’t alive and well in some workplaces, but it is by no means the norm.

Having a visible disability limits certain choices, such as whether and when to disclose the condition. But it also means that employers can less easily avoid their responsibilities by pleading ignorance of the disability; no-one can sensibly suggest they weren’t aware that someone using a wheelchair might have particular access and other needs. The key is dialogue; being clear about what you need, and ready to make suggestions (with as much flexibility as possible) as to how that might be provided. Knowing what resources are available to support disabled people in employment, such as Access to Work, occupational therapists, experts in the particular condition etc, and being able to point the employer in the right direction, can also be helpful tools.

But it can be hard to know where to start, particularly when dealing with a life-changing event and the feelings of loss and hopelessness that this might entail. Perhaps most useful of all in rebuilding a sense of personal empowerment and the confidence to go (back) into the world of work, is the opportunity to talk to other people who have faced similar challenges and overcome them. SIA’s dedicated Vocational Support Service provides an invaluable resource for just that.

For without wishing to minimise the very real downsides of having an imperfectly functioning body – pain, fatigue, frustration to name just a few – there is a sense in which we are only as disabled as the world makes us.  And while we cannot ultimately control that world as much as we might wish, we are part of it, and that in itself makes a difference. And if we are able to dismantle barriers, or even complain about them loudly enough, we can really contribute to the progress disabled people are already making towards a society where our similarities as human beings are more important than our differences.

Emma Satyamurti
Employment and discrimination solicitor, Leigh Day

Monday, 22 December 2014

Leigh Day: Victim Blaming

If someone you knew was left paralysed either by a driver convicted of careless driving or a negligent doctor and then the driver or doctor complained about how much their insurance premiums had gone up where would your sympathies lie; with the driver/doctor at fault or the person injured?

Imagine then if the insurers who had raised their premiums complained about the fact that the victim’s paralysis had cost them money and newspapers went on to publish their complaints, detailing the cost to the insurer of the injuries their own insured had caused, without mentioning the severity of those injuries or the fact that they could have been avoided with just a bit more care. Would you not think they had their priorities wrong?

If the person paralysed was you or your loved one would you not be outraged?
Yet insurers, the NHS Litigation Authority (NHSLA) and the Medical Defence Union (MDU) regularly issue figures of how much they have had to pay out to those injured through negligence.

And newspaper articles regularly focus on these figures, complaining about the “compensation culture” which they claim is rife across the country (but which in reality it is accepted does not exist).

They give little or no column inches to the person who has been injured. Nor often is there any emphasis on the fact that those injuries were caused because of carelessness by the other party, i.e. that there was fault.

Instead of expressing regret at the unacceptably high levels of unnecessary injuries those figures evidence or promising they will do more to ensure that these figure are reduced they complain about how much it is costing to compensate those who have been injured, maimed or killed through the carelessness of their insured or member.

These figures are actively pushed into the media with the suggestion that the cost is not connected to another’s failings but to the audacious way in which the victims of negligence complain and ‘greedily’ ask for compensation.

Why is the focus not on the reason that money is being paid and to whom it is being paid?

The paralysed victim and their family are human beings whose lives have been devastated and will never be the same again.

They can only claim compensation because something went wrong through no (or usually little) fault of their own.

They have been injured, often seriously, because someone else has been careless.
Why is the focus not on what the money is for?
A young girl with a spinal cord injury may not be able to move, stand, sit or go to the toilet herself and will need someone to do that for her for rest of her life.

Why is the focus not on the motivation of those who do make claims? It is not because they think it is “easy money”. It is about need, not want.

Making sure someone who is severely injured is looked after is expensive there is no doubt - but that is not the injured person’s fault- and the compensation paid will cover some of the costs of care so that the NHS/local authority doesn’t have to.

I ask those complaining and those reading those complaints to put themselves in the shoes of those who are living with disabilities that could have been avoided with more care, before they pass comment.

I believe that those who have to pay out compensation should stop the victim blaming and instead focus on the victim and future victims and look to reduce the devastating injuries that are unfortunately still occurring every day.

Nicola Wainwright, Partner – Leigh Day

Wednesday, 3 December 2014

Leigh Day: Life after a spinal cord injury – what has love got to do with it?

People with spinal cord injury (SCI) commonly rate their quality of life higher than those without disability would anticipate. Feelings of dignity, pride, confidence, hope and joy arising from social interactions can provide them with the firm foundation for a successful life. These positive attitudes are linked to the magnitude and type of support provided by strong partner, family and friend relationships.

This is not to ignore the major impact suffering SCI can have on a relationship.  Studies are mixed as to the long term impact on relationships after one partner suffers a serious injury. Some identify a higher risk of divorce due to the range of emotions both partners go through in adjusting and coping with their new life parameters…. but other studies suggest this may be a short term effect with one study reporting that 80.7% of married people were still married five years after their injury compared to 88.8% in the general population.  Another found no difference in divorce rates. There may even be positive influences on relationships arising from increased time spent together.

So what support can be offered couples to adjust to this life changing situation?

The World Health Organisation in their paper “International perspectives on Spinal Cord Injury” 2013, looked at how countries respond to the needs and rehabilitation of those with SCI and recommended:
  • Provision of appropriate services, both during rehabilitation and for subsequent community living, to help adjustment and improve quality of life.  For example assistive technologies to facilitate self-caring, since self-image is predictive of how they adjust to physical disability.
  • Providing  home and respite care, liberating individuals and reducing stress on relationships.
  • Support  to achieve positive self-esteem through access to counselling.
  • Support to partners to develop peer networks and access self-help organisations to share experiences. Marriage guidance including information and advice about intimate relationships and respite care.
  • Help to access sporting, religious, cultural, and leisure opportunities as participation can increase self-confidence and well-being.
  • Support development of a personal assistant (or ‘buddy’) i.e. human assistance not restricted to hours worked or range of tasks performed but under the individual’s control.  

In a close relationship, where there may be reluctance to introduce outside help, a risk arises of a relationship turning from loving partnership to a carer / patient relationship and overcoming that hurdle can be key to providing both mutual independence and time together.

As a firm, we support and encourage the above recommendations recognising the importance of our clients’ emotional rehabilitation.  The provision of care and assistance can be the key to a legal claim, not least one of the more costly areas of life to manage.  Accordingly, we try and identify at an early stage, all areas in which our clients are likely to need support and assistance and how that can be delivered.  That may be by putting clients in touch with support groups to help build peer networks, helping access sports or other leisure activities or building care packages with paid assistance in the form of a personal assistant or a ‘buddy’, to help give maximum independence in the home and community thereby alleviating some of the pressure on relationships. 

Alex Lush, Solicitor - Leigh Day
Links to references:


Leigh Day: Adapted vehicles

One of the greatest frustrations our spinal cord injury clients report to us is their loss of independence.  Transport and vehicles are an essential tool in redressing the balance between pre and post accident life, whether to attend social events, school/college, work, medical appointments or just a trip to the shops. A suitable means of transport is key.

Public transport is possible but will require forward planning.  Not all busses, tubes, trains and taxis are wheelchair accessible.  Assistance with journeys by rail can be obtained from http://www.nationalrail.co.uk/stations_destinations/disabled_passengers.aspx and for the underground on 0845 330 9880 but not every station will have step free access or platforms that are level with the trains.  A good tip is getting a contact number for the station so you can call and let them know you are coming!

Typically, having your own means of transport is the best option and gives the greatest freedom. In order to help you achieve the highest level of independence a driving assessment is an ideal starting point.  If you are pursuing a case for compensation the assessment can form part of the costs of the claim.  The assessment will determine which vehicle best suits your needs as a driver and/or passenger and identify any equipment or adaptations you may require.  We have extensive experience in arranging these assessments and building the recommendations into legal claims.

The driving assessment will look at your personal needs in terms of instruction and equipment such as a wheelchair lift & ramp, specialised driving adaptations such as hand controls or electronic driving controls are available. The latter can be mounted anywhere in the vehicle and can be hand, foot, shoulder, elbow, etc, operated. Seating for family, friends and support workers will also be dealt with.  Appropriate heating and ventilation are essential as well.  Specialist disabled insurance is available, but this is often offered at a higher premium and needs to be considered as part of your legal claim.   Likewise roadside assistance (AA, RAC…) gives security in case of breakdown and is also a recoverable cost.

Returning to driving or travelling as a passenger in a suitably adapted vehicle is key to regaining your independence following a spinal cord injury. 

Helen Clifford, Solicitor - Leigh Day