Achieving Disability Adjustments and Effective Participation in Legal Proceedings (draft in development)

A Practical Guide Based on the Equal Treatment Bench Book and Real Tribunal Experience

Introduction

This guide is intended to help disabled people who are considering, preparing for, or participating in legal proceedings to identify, secure, implement and monitor the adjustments they may require for effective participation.

Although written primarily with Employment Tribunal and court proceedings in mind, many of the principles discussed may also apply to grievance procedures, disciplinary processes, complaints procedures, professional regulation, investigations and other formal decision-making processes.

Disability-related disadvantage often arises throughout a process rather than solely at a hearing.

This guide is based upon:

The Equal Treatment Bench Book (ETBB), published by the Judiciary, which provides guidance to judges on ensuring fair and effective participation by disabled and vulnerable court users.
Practical experience of disability discrimination litigation involving neurodevelopmental conditions, hearing difficulties and other disabilities affecting communication, concentration, memory, organisation and information processing.

Nothing suggested in this guide goes beyond the principles contained within the Equal Treatment Bench Book.

The ETBB recognises that disabilities may affect communication, memory, concentration, information processing, hearing, reading speed, organisation, fatigue and participation generally. The adjustments discussed here are therefore not unusual or exceptional. Whether a particular adjustment is appropriate will always depend upon the individual circumstances.

Why This Guide Exists

Many disabled people are familiar with the concept of reasonable adjustments in employment.

Far fewer realise that disability-related participation issues continue when a dispute enters a grievance procedure, regulatory process, tribunal or court.

The need for adjustments does not disappear simply because a person enters a legal process.

Indeed, for many disabilities, the legal process itself may create substantial disadvantage.

Large bundles, legal terminology, procedural correspondence, disclosure exercises, witness statements, hearings and deadlines may all create barriers to effective participation.

Some people are incorrectly told that courts and tribunals are not subject to disability adjustment duties. The legal position is more nuanced than that.

Although there are important legal distinctions concerning judicial decision-making, courts and tribunals remain responsible for ensuring effective participation and access to justice for disabled court users. The Equal Treatment Bench Book exists because the Judiciary recognises that disability, vulnerability and communication needs can affect a person's ability to participate fairly in legal proceedings.

The central principle is simple:

A disabled person should not lose meaningful access to justice because the legal process fails to take account of the effects of their disability.

The same thinking often applies to grievance procedures, disciplinary investigations, complaints processes and regulatory proceedings. In many situations, disability-related disadvantage can arise throughout the process and not merely at the final hearing or meeting.

This guide therefore approaches legal proceedings in the same way that the Equality Act approaches employment:

Identify the disability-related disadvantage.
Identify the adjustments required to reduce or remove that disadvantage.
Ensure those adjustments are implemented throughout the process.

The objective is not special treatment.

The objective is effective participation, procedural fairness and equal access to justice.

Disclosure Does Not Equal Adjustment

One of the most important lessons learned from experience is that there is often a significant difference between:

disclosing a disability;
explaining its functional effects;
requesting an adjustment;
obtaining agreement to an adjustment;
implementing an adjustment; and
ensuring that the adjustment remains effective.

Many disabled people assume that once a disability has been disclosed, appropriate adjustments will automatically follow.

Unfortunately, this is not always the case.

In practice, adjustments often need to be identified, explained, requested, recorded and monitored throughout the life of a case.

The Legal Process Does Not Begin At The Hearing

Many discussions about disability adjustments focus on the final hearing.

This is a mistake.

For many disabilities, particularly ADHD, dyslexia, autism, auditory processing difficulties and other neurodevelopmental conditions, significant disadvantage may arise during:

correspondence;
disclosure exercises;
witness statement preparation;
case management;
preliminary hearings;
document review;
legal research;
post-hearing submissions.

The hearing may last a few days.

The litigation process may last several years.

Adjustments should therefore be considered throughout the process.

Ensure Your Adjustment Requests Reach The Tribunal

One of the most important practical lessons from experience is this:

Do not assume that because you have informed your solicitor, barrister, union representative or adviser about your disability, the Tribunal has been informed of the adjustments you require.

Many disabled litigants assume that once they have explained their disability to their representative, appropriate adjustments will automatically be requested.

Unfortunately, this is not always the case.

A disability may be recorded in medical evidence, correspondence or discussions without any specific adjustment request ever reaching the Tribunal.

For this reason, you should satisfy yourself that:

the adjustments required have been identified;
the adjustments have been requested in writing;
the request has been sent to the Tribunal;
the Tribunal has considered the request;
any agreed adjustments have been recorded in writing.

Ask:

Has the Tribunal actually received my adjustment request?

Has the Tribunal formally agreed these adjustments?

Are the adjustments recorded in a Case Management Order or other written document?

Disclosure of a disability is not the same thing as requesting adjustments.

Case Study: What We Requested And What We Learned

In our own Employment Tribunal proceedings, detailed adjustment requests were submitted directly to the Tribunal in writing.

The requests included:

regular breaks;
single questions rather than multi-layered questions;
sufficient time to assimilate information before answering;
sufficient time to review documents before commenting;
assistance with recall of dates and events;
access to recordings;
assistive technology.

Many of these adjustments were subsequently accepted by the Tribunal and recorded in formal Case Management Orders.

This demonstrated that clear written requests can be effective.

However, looking back, one important lesson was learned.

The adjustment requests focused primarily on participation during the hearing.

Equivalent adjustments should also have been requested for:

correspondence;
disclosure;
witness statement preparation;
preliminary hearings;
solicitor communications;
post-hearing submissions;
large bundles;
legal correspondence and procedural documents.

The disability did not only affect participation in the hearing room.

It affected participation throughout the litigation process.

Do Not Assume Others Understand Your Disability

The Equal Treatment Bench Book repeatedly emphasises the importance of understanding functional impact rather than relying upon labels or assumptions.

Do not assume that judges, solicitors, barristers, employers or HR professionals understand how your disability affects you.

Simply saying:

"I have ADHD."

or

"I have dyslexia."

is rarely enough.

Instead explain:

what difficulties arise;
when they arise;
how they affect participation;
what adjustments reduce the disadvantage.

The more clearly the disadvantage is explained, the easier it becomes to identify effective adjustments.

The Professional Competence Fallacy

Disabled professionals frequently encounter an assumption that because they are highly educated or professionally qualified, they do not require adjustments.

This assumption is often wrong.

A doctor may understand medical terminology immediately because of years of training and experience.

That does not mean they automatically understand:

Employment Tribunal procedure;
legal pleadings;
disclosure rules;
case management;
procedural correspondence;
legal terminology.

Many professionals have spent years developing strategies, adjustments and expertise within their own field.

Those adaptations do not automatically transfer into an unfamiliar legal environment.

The relevant question is not:

Is this person intelligent?

The relevant question is:

Does this disability create disadvantage in this particular environment?

Professional competence in one field does not remove disability-related disadvantage in another.

Common Adjustments To Consider

Hearing Adjustments

Depending upon the disability involved, adjustments may include:

regular breaks;
additional thinking time;
single questions rather than multiple questions combined together;
permission to ask for repetition;
time to review documents before commenting;
use of assistive technology;
hearing support equipment;
permission to refer to documents when recalling dates;
access to hearing recordings;
protection against being expected to absorb large quantities of new information immediately.

Process Adjustments

The same principles may apply throughout litigation.

Consider whether adjustments are required for:

disclosure exercises;
witness statement preparation;
legal correspondence;
preliminary hearings;
case management discussions;
procedural directions;
bundle preparation;
post-hearing submissions.

Possible adjustments may include:

additional time to review documents;
protection from substantial late disclosure;
accessible document formats;
realistic deadlines;
written summaries of important procedural issues;
identification of key documents;
compatibility with assistive technology;
additional time to understand complex legal documents.

Access To Hearing Recordings And Notes

For some disabilities, access to an audio recording may be significantly more effective than reliance upon written notes, memory or transcripts.

Where appropriate, consider requesting:

access to recordings;
prompt provision of recordings after hearings;
sufficient time to review and assimilate recordings;
timetable adjustments where review of recordings is reasonably required.

The purpose of a recording is not merely to create a record.

The purpose is to facilitate effective participation.

For some disabled people, requiring reliance upon extensive written notes, memory or rapid review of large quantities of text may itself create disadvantage.

The relevant question is therefore not:

Does a recording exist?

The relevant question is:

Can the disabled person access and use the information contained within that recording in a way that allows effective participation?

The answer may differ depending upon the disability involved.

If Adjustments Are Not Implemented

An adjustment being agreed does not automatically mean it will be implemented consistently.

If an agreed adjustment is not followed:

raise the issue promptly;
ask for an explanation;
ask for the issue to be recorded;
ask what steps will be taken to ensure future compliance.

You are entitled to understand why an agreed adjustment is not being implemented.

The objective is not confrontation.

The objective is effective participation.

An adjustment that exists only on paper is not necessarily an adjustment that exists in practice.

Key Lessons

If you remember nothing else from this guide, remember the following:

Disability does not end when litigation begins.
Adjustments may be required throughout the entire process, not just at hearings.
Disclosure does not equal adjustment.
Ensure adjustment requests reach the Tribunal.
Do not assume others understand your disability.
Professional success does not remove disability-related disadvantage.
The objective is effective participation, not merely the existence of an adjustment.
Access to recordings means meaningful access, not merely that a recording exists.
An adjustment on paper is not necessarily an adjustment in practice.
The Equal Treatment Bench Book is a valuable resource that supports effective participation by disabled court users.

Final Thoughts

The Equal Treatment Bench Book is built upon a simple principle:

Disabled people should be able to participate effectively in legal proceedings.

This guide is based upon the practical reality that effective participation often requires more than simply disclosing a disability.

Identify foreseeable barriers early.

Explain the functional effects of your disability.

Request specific adjustments in writing.

Ensure those requests reach the Tribunal.

Ensure agreed adjustments are recorded.

Monitor implementation throughout the case.

The most important lesson is simple:

Do not assume that because your disability is known, your participation needs are understood.

Identify them, explain them, record them and ensure they remain visible throughout the entire process.

Adjustments within a legal process

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