- Wilks, R. (2020). Making equality law work for Deaf people [Doctoral dissertation, University of Leicester]. University of Leicester Repository. https://doi.org/10.25392/leicester.data.11806 764.v1.
Deaf people are often compartmentalised as part of the Disabled-World, often ignoring the Deaf-World to the extent that it is only their audiological status that has any significance or meaning. This is in stark contrast to Deaf people’s view of themselves, that is, as a culturo-linguistic group rich in its history, culture and language. The conflict between the Disabled-World and the Deaf-World is manifested in how Deaf people are protected by the law against discrimination and inequality; in order to benefit from such protections, Deaf people are generally forced to accept the disability label.
It is this disability label that influences society’s understanding of Deaf people and in the process, how they deal with Deaf people in the context of anti-discrimination law, as in order to claim discrimination, Deaf people have to prove that their deafness is a disability in order to qualify. For some Deaf people, this is anathema to their Deaf identity; for others, this is an acceptable compromise on the basis of intersectionality (Kusters et al., 2015), that is, a Deaf individual has a multitude of identities, Deaf and disabled being but two of them.
What lessons can be learnt from this? To answer this question, it is necessary to ascertain the extent this conflict – what I refer to as the Deaf Legal Dilemma – contributes to the inequalities that Deaf people continue to experience? Is it this compartmentalisation that diminishes Deaf people’s progress towards equality?
To answer these questions, I will apply a deaf legal theory (DLT) lens to equality law and will expose the European Convention of Human Rights (Council of Europe, 1950) (the ECHR), the Equality Act (2010) (the EqA 2010) and the Convention on the Rights of Persons with Disabilities (United Nations, 2006) (the CRPD) and determine exactly how they have impacted on or how they can be applied to Deaf people.
What’s the problem?
The general consensus is that Deaf people continue to experience inequality, despite the existence of equality laws in the UK that purport to eliminate discrimination and increase equality of opportunity (Equality Act, 2010).
The evidence is in fact, overwhelming in terms of:
- education (Batterbury Magill, 2014; O’Neill et al., 2014; Consortium of Research in Deaf Education, 2021; National Deaf Children’s Society, 2021; Rowley & Cormier, 2021);
- the general provision of services by retail, banking and other industries (Batterbury Magill, 2014; Reynolds et al. v Live in the UK Limited, 2021);
- employment (Arrowsmith, 2013; Batterbury Magill, 2014; Totaljobs, 2016; Barnes, 2017; Action on Hearing Loss, 2018; Royal Association for Deaf people, 2021);
- legal services (Borland et al., 2009; Kyle et al., 2012);
- the legal system (Brennan & Brown, 1997; Harrington & Turner, 2000);
- the political system (R (on the application of Rowley) v Minister for the Cabinet Office, 2021); and
- health services (Batterbury Magill, 2014; SignHealth, 2014; Emond et al., 2015, Terry et al., 2021).
Equality law as it applies to Deaf people
By establishing how Deaf people are framed within equality law – namely the ECHR, the EqA 2010 and the CRPD – it will become clear that Deaf people are deprived of their opportunities due to being grouped into the ‘disabled’ collective. It will also become clear that the ability of Deaf people to challenge the oppression they experience is severely restricted to varying degrees.
European Convention on Human Rights
In the UK, the ECHR is enshrined in law by way of the Human Rights Act (1998) (the HRA). At first glance, it appears to have immense relevance to Deaf people, and provides the right to life and to protection from torture, slavery and forced labour; the right to a fair trial; the right of privacy and to a family life; the right to freedom of thought, conscience and religion, and to expression; the right to associate and assemble, and the right to freedom from discrimination (article 14).
However, it can be difficult to bring a case to the European Court of Human Rights (ECtHR). The ECHR’s falling grace, however, is that for groups such as Deaf people, article 14 only comes into play if one of the other articles have been infringed, and by a public authority. Lawson (2005) and Clements and Reed (2005) confirm that the concept of discrimination in article 14 cases is narrow and has not yet offered a great deal of assistance to disabled people in challenging oppression.
There have been a number of ECHR cases considering whether the human rights of Deaf individuals have been infringed. For example, in Jasinskis v Latvia (2010), a deaf man died whilst in police custody after sustaining serious head injuries in a fall down some stairs, and the authorities did not provide him with a pen and paper to enable him to communicate his concerns about his state of health whereas in ZH v Hungary(2012), a deaf man with learning difficulties had been detained for almost three months and did not take measures to accommodate his multiple disabilities. The Hausch v Austria (n.d.) case considered an objection to pay full TV licence fees without 100 percent subtitling, and Kacper Nowakowskit v Poland (2017) considered a deaf father’s contact rights with his son.
Therefore, the ECHR’s discrimination provisions are too restrictive in scope to be of much benefit to Deaf community.
Equality Act 2010
On the whole, there is more scope available to challenge oppression within the EqA 2010, as Deaf individuals can expect employers and service providers to implement adjustments. However, there is a clear divide with regard to the nature of the adjustments, that is, single, one-off adjustments with respect of a PCP or physical feature are more likely to be considered reasonable than recurrent adjustments to address the lack of an auxiliary aid, which is the type of adjustment that Deaf people will need, usually in the form of communication professionals.
There have been a few cases related to deaf people:
Finnigan v Northumbria Police Chief Constable (2013)
The police arrested a profoundly deaf claimant without an interpreter, and Finnigan claimed that the police had failed to make reasonable adjustments. It was held by the Court of Appeal that there had been no such failure, as Finnigan had been able to sell cannabis to undercover officers without an interpreter.
Appleby v Department for Work and Pensions (2003)
Appleby had attended his local jobcentre to produce his passport for an application for a National Insurance number. The DWP had applied a policy on using screened rooms for interviews which made it difficult for Appleby to use their service.
Berry v GB Electronics Ltd (2000)
The Employment Appeal Tribunal held that the criteria for redundancy selection applied by the employer, and also the manner in which Berry was advised of his dismissal, that is, the failure to make any reasonable adjustments for the meeting, had discriminated against him, and made a declaration to that effect.
Reynolds et al. v Live in the UK Limited (2021)
It was held that the provision of an interpreter for a live concert is a reasonable adjustment.
An interesting observation regarding these four cases is that the reasonable adjustments required tended to be of a single, one-off, nature, that is, during an arrest, a visit to the jobcentre, a redundancy meeting and a concert.
Upon a search of cases that considered various reasonable adjustments, the majority of the adjustments were ones where no or minimal costs were incurred. If these cases were transplanted into a Deaf context, it could be suggested that allowing a Deaf employee to give their account through BSL in a disciplinary hearing, allowing a Deaf employee more time to appeal against dismissal due to language barriers, allowing a BSL/English Interpreter to translate emails into BSL, amending hours to suit BSL/English Interpreter availability, and ignoring deaf-related absences, such as for audiology appointments, providing instructions in writing, explaining etiquette and unwritten rules, and Deaf awareness training, could all be considered reasonable adjustments.
There is only one case with a deaf claimant relevant to the provision of interpreters as a recurrent adjustment:
R (Rowley) v Minister for the Cabinet Office (2021)
An on-platform interpreter for Covid-19 briefings, that is, next to or in the same frame as the speaker, usually a Minister of State or Public Health England official, was not reasonable in the circumstances as provision had been made on the BBC News channel.
While this case focused on a few briefings that did not have any interpreting provision whatsoever, it is worth noting that these too would have been recurrent adjustments which were not considered reasonable. However, with the BBC News channel provision factored in, the result of this particular case is somewhat skewed.
It may be helpful to consider at this point other cases that involved recurrent adjustments akin to BSL/English Interpreters or lipspeakers for comparison. In Tooley v Crown Prosecution Service (2016) (CPS), it was held that the respondent had failed to make reasonable adjustments in getting an emergency personal assistant for a barrister with multiple sclerosis. Although the costs involved are unknown, this case suggests that the CPS provided and presumably funded the provision of personal assistants for a disabled employee. Further, in Cherrington v Home Office (2015), it was held that an adjustment should have made in addition to the ones listed above to provide a workplace buddy to assist the claimant by reading aloud emails, database and input data.
In terms of ongoing, higher cost adjustments, there is some ambiguity on what would now constitute a reasonable adjustment following the Employment Appeal Tribunal’s (EAT) decision in Cordell v Foreign & Commonwealth Office (2016), which makes it clear that there is a cap on the costs an employer is expected to pay for adjustments. In this case, it was considered that £250,000 for lipspeakers to accompany a deaf diplomat in Kazakhstan was unreasonable because they would be recurrent. This is in contrast to Royal Bank of Scotland Group Plc v Allen (2009), in which it was decided by the Court of Appeal that an adjustment costing £200,000 to install a wheelchair access at the bank’s Church Street branch in Sheffield, was reasonable, presumably because this would have been a one-off adjustment.
One can conclude that the adjustments in Tooley v CPS (2016) may have been considered reasonable as they can be fulfilled by the utilisation of individuals paid the minimum wage (provided they receive the appropriate training), rather than specialist support such as BSL/English interpreters, lipspeakers and Palantypists.
The Cordell case also serves as a reminder that the provision of adjustments for Deaf people can be expensive. Most adjustments for disabled individuals tend to be simple and relatively cheap, such as a portable temporary ramp as opposed to a permanent one, or the provision of documents in extra-large print or sent to a Braille service for conversion (Burns & Gupta, 2004). It could be argued that a court or tribunal is more likely to find that an adjustment is reasonable in terms of where a policy, criterion or provision is imposed, or if adjustments are needed to a premises, rather than lack of an auxiliary aid or service, except where such an auxiliary aid or service is a one-off or a series of one-offs.
Deaf people can ask employers and service providers to implement adjustments, but this is subject to a reasonableness test which determines whether or not the adjustment is in fact obligatory, and the outcome of this test will be largely influenced by whether the adjustment required is to be a one-off, single adjustment, or a recurrent one.
Public sector equality duty
The public sector equality duty (PSED) aims to ‘integrate consideration of advancement of equality into the day-to-day business of all bodies subject to the duty’ (EHRC, 2014). In practice, public authorities must have ‘due regard’ to the ‘Brown principles’ (R (Brown) v Secretary of State for Work and Pensions, 2008) to the need to eliminate discrimination and other conduct prohibited by the Act, advance equality of opportunity, and foster good relations, by taking steps to meet the needs of groups of individuals and encouraging participation in public life.
Alleged breaches of the PSED are enforceable by way of judicial review proceedings and there appear to be two recurrent themes in relevant cases: firstly, the failure of public authorities to provide proper evidence of compliance with the PSED which is likely to lead to a finding of a breach of the duty, and secondly, the failure of public authorities to provide evidence that all relevant protected characteristics have been considered (Darwin, 2016).
Some case studies show how the PSED can work in practice. Tower Hamlets Council used its PSED to improve the educational attainment of its pupils from 8 percent achieving five or more A-Cs at GCSE in 1990 to 62 percent in 2012 by identifying that the majority of underperforming students came from homes where English was not the first language and took the necessary steps to address that (EHRC, 2019a). Could a similar approach be taken to improve the attainment outcomes of deaf children?
The PSED has also seen an improvement in decision-making and transparency by public authorities, and efforts to mainstream equality in an organisation’s culture (EHRC, 2019b). For example, the PSED led to the adaptation of hospital wards and deaf awareness training for staff alongside a new intercom system for deaf patients to access wards (Clayton-Hathway, 2013). An independent evaluation of the NHS Equality Delivery System conducted in 2012 also showed early evidence of improvement in engagement with local voluntary and community organisations and patient groups, including Deaf people (Shared Intelligence, 2012).
All in all, the case studies put forward to demonstrate how the PSED can and does work in practice shows that it has the wherewithal to effect positive changes in society either through the decision-making process of public authorities, increased consultation and engagement with employees and service users, and the gathering of data in order to substantiate the claims of inequality by marginalised groups.
The EqA 2010 is clearly a game of two halves. It has been established that the individual enforcement model adopted by the EqA 2010 does not always make it possible to challenge oppression in the form of failure to make reasonable adjustments. However, its PSED provisions do go some way to encourage social inclusion by way of active measures to integrate marginalised groups in society. However, the lack of enforcement mechanism – relying only on the generally difficult route of judicial review or the ECHR – poses a barrier to Deaf people who wish to challenge oppression through this route.
Convention for the Rights of Persons with Disabilities
The provisions of the CRPD refer to national sign languages, include the requirement of state parties to the treaty to provide professional sign language interpreters to facilitate accessibility to buildings and other facilities open to the public and in the context of freedom of expression and opinion, accepting and facilitating the use of sign languages and recognising and promoting the use of sign languages. In terms of education, the CRPD stipulates that state parties should facilitate the learning of sign language and promote the linguistic identity of the deaf community and take appropriate measures to employ teachers, including teachers with disabilities, who are qualified in sign language. Finally, the CRPD recognises that Deaf people are entitled to recognition and support of their specific cultural and linguistic identity, including sign languages and deaf culture.
The UK has ratified the CRPD’s Optional Protocol, which enables people with disabilities to make a complaint to the UN Committee on the Rights of Persons with Disabilities if they believe that their CRPD rights have been breached – that is, they have been oppressed – and they have exhausted means of redress via the UK or European Courts, whereupon the quasi-judicial committees charged with receiving individual complaints under these treaties consist of experts who evaluate the merits of ‘communications’ and issue ‘views’ as to whether the state party in question violated its treaty commitment (Cole, 2012).
Only 34 complaints have been registered under the CRPD to date (OHCHR, 2022). To date, only four are relevant to Deaf people. Lockrey (2016), Beasley (2016) and JH’s (2018) communications were made in relation to the participation of deaf people in jury duty, Al Adam (2018) concerned failure to treat preventable hearing loss, while AM’s (2015) was held to be inadmissible. It is clear that the individual complaints procedure associated with the CRPD provides a source of redress for Deaf people to challenge oppression. The next question must therefore be: what complaints could Deaf people make under the provisions of the CRPD?
Upon examination of the 34 complaints made so far to the CRPD Committee, if one was to apply similar scenarios in respect of Deaf people, one could surmise that if, for whatever reason, Deaf individuals were under the guardianship of others and were denied the right to vote, this would be a contravention of the CRPD, as would the imprisonment of a Deaf individual without providing that individual with the opportunity to enter a plea, and the lack of digital information displays where transport information was only available in audio format.
The CRPD enshrines sign language rights in international law for the first time and imposes an obligation on state signatories to accept and facilitate sign language and more besides. Once again, however, challenging oppression is confined to an individual enforcement model, and there has been little take-up of its individual complaint procedure to date, although initial results appear to be encouraging once the admissibility hurdle has been overcome.
Given the objections that Deaf people have in being considered to be disabled – objections that have been validated by Deaf discourse – the logical conclusion would be that equality law – which only allows Deaf people to claim discrimination if they accept the label of disability – does not perhaps provide the most appropriate operatus morandi for Deaf people. It is clear that current equality law – at domestic, European and international level – can only do so much at present and that it is only part of the solution (O’Cinneide, 2015) to the Deaf Legal Dilemma. It is clear that equality law in the form of the the ECHR, the EqA 2010 and the CRPD all fail to challenge the oppression that Deaf people experience, either in the impotence of their enforcement mechanisms, or in the way that their ‘rights’ are framed.
- The Deaf Legal Dilemma is the concept that I use when referring to the fact that Deaf people usually have to accept the disability label in order to benefit from protections or entitlements afforded by the law.
- Relevant to any study of equality law as it relates to deaf people are the Deaf Equality Concepts which are: equal treatment, equality of opportunity, equal worth and dignity, social inclusion, and the challenge to oppression. They can be categorised into the following precepts: formal, substantive and transformative equality.
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Please note: the term ‘deaf’ means all deaf people*, to indicate positive affirmation of their identities; and as a celebration of individual and collective talent.
* D/deaf, Sign Language Peoples, Deafblind, hard of hearing