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The Disability Survey Research Report and my experience by Kay Foulkes

We recently saw the publication of the UK Governments Disability Unit’s ‘Disability Survey Research Report’ . As a disabled person this was hard reading 26 years after the Disability Discrimination Act 1995 was given royal assent, when for the first time Disabled people had specific protections from ill treatment. The responses to the survey paint a picture of the United Kingdom, which is not particularly positive.

The UK is perceived by respondents as somewhere that ‘unhelpful’ public perceptions of disabled people persist, with half of the respondents reporting they have been insulted or harassed in public places. Accessibility remains a major concern with many reporting their homes do not meet their needs, a quarter struggle accessing public buildings, and one third struggle with accessibility in public places.

In relation to the two major drivers of social mobility, education and employment, the situation is no better. Only one in ten respondents believe that disabled people are given the educational opportunities they need to thrive, and those who are unemployed feel there is not sufficient support to find and keep a job. Of those in employment only half in employment felt their employers were flexible and made sufficient reasonable adjustments, and only a quarter felt they had the same advancement opportunities as their colleagues.

There has been a significant amount of legislation which purports to provide protections for disabled people in everyday life since the 1995 Act, with the 2005 Disability Discrimination Act introducing a Disability Equality Duty for public sector bodies and the 2010 Equality Act containing a protection from discrimination arising from disability (in addition to the protections from harassment, victimisation, indirect discrimination and direct discrimination which apply to all the Protected Characteristics). However, not all of these changes have been seen as positive.

The 2016 Equality Act saw the establishment of a single Equality and Human Rights Commission, replacing the Disability Rights Commission and the Race and Equal Opportunities commission. Additionally, the 2010 Equality Act replaced the specific Disability Equality Duty with a single overarching Public Sector Equality Duty that covers all Protected Characteristics. The fact that we no longer have a body focused solely on the protection of our rights nor are public sector bodies required to focus on advancing the inclusion of disabled people is seen by many disabled people as being at the root of the problems faced by disabled people.

Having just left tertiary education I have seen first-hand the struggles that many disabled people face in gaining an education, through the institutional barriers put in place both deliberately and unconsciously by education providers and the lack of support for disabled people. These failures result in significant wasted potential as disabled students often have to put so much time into fighting for basic adjustments that their academic performance is impacted, which in turn has an impact on their career prospects.

When it comes to employment, many employers see only the ‘problems’ that employing a disabled person would bring to their organisation, or see requests for reasonable adjustments as being requests for special treatment. In failing to see the benefits that employing disabled people (and other under-represented groups) can bring to their organisation, not least of all through providing a different perspective, again results in significant wasted potential.

The feeling that employment and education are not for us is a feeling that many disabled people share. Not through any lack of ability or willingness on our parts, but through the knowledge that the effort we will have to put into being able to access opportunities and remain employed or in education may very well have a detrimental effect on our health, particularly when employers and education providers are unwilling to meet their basic obligations under the law, or failing to recognise the potential in disabled candidates and employees if given appropriate support.

Despite being made up of people with a firm grounding in the law, the Scottish legal profession has a long way to go before it is truly inclusive of disabled people. Scottish Government figures record that 25% of the population define themselves as disabled, while the World Health Organisation believes that around 10% of the population is disabled. When looking at the Scottish Legal Profession, in the Law Society of Scotland’s 2018 Profile of the Profession. only 5% of respondents identify as disabled, a figure which was reflected in the 4.8% of those renewing Practicing Certificates in 20/21. As a disabled lawyer this disparity is alarming, as is the evidence of the experience of disabled members of the profession.

The 2018 Profile of the Profession highlights that 60% of respondents experiencing discrimination did so due to their sex/gender, this fails to acknowledge that the situation for disabled respondents is much worse with around 21% of disabled respondents reporting discrimination due to their disability. In contrast the 231 respondents reporting discrimination due to sex gender is around 14% of female respondents or 8.5 of all respondents. Elsewhere in the report, it is noted that 54% of all respondents identify work/life balance as the reason they consider leaving the profession, worryingly a higher proportion of disabled respondents indicated that they were unable to achieve a reasonable work/life balance than those without a disability. In the one issue for disabled people that is highlighted in the report, 37% of disabled respondents requiring a reasonable adjustment reported either not being provided with that reasonable adjustment or being too wary to request one in the first place.

The 2018 profile of the profession indicates that a lot of work has to be done not only to increase the number of disabled people in the profession but also to improve their experiences once they enter the profession. There are some movements in this direction such as the recent Scottish Government sponsored Legal Aid Traineeships Scheme, where firms are expected to give a guaranteed interview to disabled candidates who meet the essential criteria in the advertisement. However, the experience of some disabled students at university shows a lot of work needs to be done before people get to this stage.

Gary Copland is a recent graduate of the LLB at University of Glasgow who is blind and autistic. Unlike other students who describe university as the best time of their lives Gary has been through what has been described as ‘five years of sheer hell’, fighting a battle simply to be able to complete his degree at an institution which only provided 5 out of 1100 texts in an accessible format in the first 2 years of his degree. However, the indignities that Gary faces have not end there as he has now been rejected by every diploma provider he has applied to. The barriers that Gary has overcome to even pass his LLB are unimaginable for most LLB Graduates, but instead of this being seen as testament to his ability and potential, he continues to face barriers to being able to practice law which non-disabled students do not. This begs the question as to what is being done to ensure that disabled students are not disadvantaged from the start of the PEAT 1 academic training?

Finally, if you will indulge me, my personal experiences are illustrative of the impact an employer failing to meet obligations towards disabled people can have.

Before returning to university to study law, I was a Civil Servant and had disabilities which had a relatively minor impact on my work. However, finding that my disability was starting to impact on me at work, I made a request for minor reasonable adjustments. This initiated a course of worsening treatment by my employer over the next 5 years. Like many other disabled people, I found myself becoming more disabled due to the way I was treated by an employer after disclosing I was disabled. My request for minor reasonable adjustments was seen as an inconvenience and ‘unfair’ on my colleagues and I had to fight them at every juncture. Ultimately this treatment resulted in my becoming so ill that I was not only forced out my job but also my relationship of 11 years.

I have spent several years recovering from this experience, at the same time also returning to university, where I achieved both a law degree and post-graduate professional qualification. However, even at university I have had to fight for basic reasonable adjustments and while my struggles may pale into insignificance compared to those of other students, such as Gary Copland, nonetheless they are real. Like many other law graduates I am now looking to move onto the next stage of my legal career, and I will admit it is hard starting out again for the third time in my life through no choice of my own. Having had my career as a soldier ended because of the ban on LGBTQI+ people serving in the military, and my career as a civil servant ended due to bullying and discrimination related to my disability. While my peers are now reaching more senior ranks in the Army and Civil Service, with one even becoming a Judge, I am searching for a training contract.

Understandably this is more than a little demoralising and my confidence is not high. Explaining a 9-year gap in my employment is a challenge, as is explaining why I left the Civil Service, particularly given what I achieved before that gap. Employers often look to continuous employment as an indication of ability and reliability and there is an effective prohibition on criticising past employers, attitudes which seriously disadvantage disabled candidates. These are some of the first questions that potential employers will ask along with how you supported yourself through university, which can be humiliating when it was through the receipt of disability benefits. These questions are almost impossible to answer truthfully in a way that will satisfy an employer who is not particularly open minded, leaving you with a choice between lying or drawing attention to your disability, which is then often seen as a liability.

But I keep at it, I hope that I will find that employer who sees what I have achieved despite the challenges put in my way as a positive rather than focusing on the fact my route has been far from the ‘normal one’. That my experiences might actually make me a better lawyer, with a knowledge and understanding of life experiences that few other lawyers may have. Disabled people are a valuable part of our society and have so much to offer, but as indicated by the responses to the Disability Units Report, we still have a long way to go before many, if not most, employers come to realise this and are willing to invest in us.

Kay's biography

Kay Foulkes is a recent graduate of the Diploma of Professional Legal Practice at the University of Strathclyde and is currently the most visible trans member of the Scottish Legal Profession as a board member of the Glass Network. As a former Home Office Presenting Officer Kay was a member of the Steering Group for the Home Office’s LGBTQI+ staff Network SPECTRUM and was involved in the establishment of the Civil Service wide trans network A:Gender. Kay currently works closely with the LGBTQI+ refugee community in Scotland and sits on the Immigration and Asylum Sub-committee of the Law Society of Scotland, and is a former member of the University of Glasgow’s’ Disability Equality Group.

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