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How to calculate damages for disability discrimination case?

How to calculate damages for disability discrimination case?

Postby tommydog » Wed Apr 05, 2017 10:39 pm

The following scenario is almost identical to my own personal case; however, I have changed a few minor details to protect my identity on a public forum. Any discussion on calculating damages would be much welcome:

A Dyslexic student has to undertake a mandatory work experience placement (100 days) as part of their Social Work degree. The placement is found by the university, who accredit the placement and oversea / formally asses the students’ progress on placement.

The student has a full diagnostic and needs assessment Dyslexia report completed by a chartered educational psychologist. The report lists a number of reasonable adjustments, however the placement are unwilling to accommodate these reasonable adjustments. The student informs the university of this matter, however the university takes no action to ensure that reasonable adjustments are implemented and tells the student they must continue with the placement as is. The student then walks out of the placement after 1 week, citing a failure to implement reasonable adjustments, thus breaching the Equality ACT. One week later, the university write to the student, threatening that if they don’t resume placement, the placement will be classed as a failure. The university refuse to offer the student an alternative placement and ignore the student’s complaint of discrimination. The student once again refuses to resume placement on the grounds that no provision has been made for the implementation of reasonable adjustments. The university ignore the student’s complaint and send them a formal letter saying they have failed the placement module, and in accordance with university policy they will be permitted one retake. They are warned that if they fail the retake, they will automatically fail their degree. The student is then offered another placement (which implements all the reasonable adjustments), which they successfully complete, to a high level (80% grade average).

The question is how would damages be calculated in a such a case? Assuming discrimination can be proved, the student has faced no direct financial loss. They have simply had a discriminatory policy invoked against them (module failure) which has left them feeling aggrieved and under pressure to pass the next placement, as they will not be permitted a retake. Is there any guidance for calculating such damages? Is there any case law in this area?
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Re: How to calculate damages for disability discrimination c

Postby dls » Thu Apr 06, 2017 8:38 am

You may be near to a claim but there are difficulties.

Whose act (who is to be sued)
has caused exactly what loss?

Quantification starts from asking what losses have been suffered. Discrimination cases can attract damages for injury to feelings.
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Re: How to calculate damages for disability discrimination c

Postby Hairyloon » Thu Apr 06, 2017 8:46 am

dls wrote:You may be near to a claim but there are difficulties.

Whose act (who is to be sued)

I suggest both the university and the placement are guilty.
has caused exactly what loss?

As a starting point, there is a weeks work. Would it be unreasonable to value that at the normal rate for that kind of work?
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Re: How to calculate damages for disability discrimination c

Postby dls » Thu Apr 06, 2017 8:50 am

The week's work was presumably given on the basis that it would not be paid for.
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Re: How to calculate damages for disability discrimination c

Postby Hairyloon » Thu Apr 06, 2017 8:56 am

dls wrote:The week's work was presumably given on the basis that it would not be paid for.

It was given on the basis that it would form a valid contribution to the qualification: the university has defaulted on that understanding so we look for an alternative.
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Re: How to calculate damages for disability discrimination c

Postby tommydog » Thu Apr 06, 2017 9:46 am

dls wrote:You may be near to a claim but there are difficulties.

Whose act (who is to be sued)
has caused exactly what loss?

Quantification starts from asking what losses have been suffered. Discrimination cases can attract damages for injury to feelings.



In my opinion it is the university that should be sued, pursuing the placement may not be so easy. As a student I had a contract with the university. They are the ones who find the placement, assess the placement portfolio and ultimately pass or fail the placement module. I believe the placement are even paid by the university or student finance England to take students. The university have a duty to find student placements which meet their needs in terms of reasonable adjustments. If reasonable adjustments are not implemented, in my opinion the university should act to rectify this, or find the student another placement. They did neither. The only thing they did is threaten me and fail me with 0%.

When it boils down to it, I have lost 1 week of time, but it is the personal stress associated with the situation, which I am having problems quantifying. After this incident I was extremely stressed and anxious for the next 100 days of placement. Due to this incident I felt bullied and unable to approach university staff for help and advice. As I had completed all modules of my degree, bar the placement module, I was aware that if I failed the retake I would fail my entire degree. This was a huge pressure. Even though the next placement implemented all the reasonable adjustments, I was extremely anxious throughout placement of failure and studied for approx 20 hours a day to ensure that I would pass the placement. I was physically and mentally exhausted. I had never been this anxious before at any stage of my degree, and I had never failed a module before (in fact I gained distinctions in everything).

I felt so intimidated and disgusted with the way the university treated me, I did not attend my graduation ceremony.

Where do I start in quantifying the hurt / anxiety caused? I don't have any official medical evidence of clinical anxiety / depression, but is it not reasonable to assume, and would a court not take the view that a failed module is likely to cause most students some level of anxiety?
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Re: How to calculate damages for disability discrimination c

Postby blig » Thu Apr 06, 2017 6:54 pm

I'm not sure - maybe consider instead an employment tribunal claim for injury to feelings against the original placement, asserting you are a worker as carrying out work, and

the placement are unwilling to accommodate these reasonable adjustments


I think what the university then do is wrong but I can't from the information posted see damage. That is, I'm not convinced by a claim for breach of contract equivalent to one week's university fee, which is the lost time. It would be a different scenario if the alternative placement wasn't passed but as you have passed, the university could argue the paperwork was issued as an unfortunate administrative error and of course they would then have found an alternative placement.

As a tribunal claim, you'd be looking towards the top of the lowest Vento band for the claim value. Consider ringing Acas free of charge for a view.
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Re: How to calculate damages for disability discrimination c

Postby tommydog » Thu Apr 06, 2017 10:18 pm

blig wrote:I'm not sure - maybe consider instead an employment tribunal claim for injury to feelings against the original placement, asserting you are a worker as carrying out work, and


Why would it be an employment tribunal? This was unpaid work. I had no direct contract with the placement. The university funds the placement and administers it in full. I think trying to prove that you are a "worker" with a view to a direct claim against the placement under the Equality ACT is complex.

As dls wrote "Discrimination cases attract damages for injury to feelings". I think that's where the damages are. I can't even claim damages for tuition fees as I received a full NHS bursary. The trouble is I am struggling to find clear case law guidance in this area. I have looked on bailii, but there is nothing directly comparable to my case. I want to write a "letter before claim" so don't just want to pluck a figure from thin air. From employment cases, injury to feelings seem to range between £2,000 and £8,000. Any idea where my case would fit? The placement may have only lasted for 1 week before I walked out, however the decision of the university to fail me caused a great deal of anxiety. I don't buy an "administrative error", the university threatened this orally/ in writing and executed the threat in full. Any idea where this fits on a scale of £2000 to £8000?
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Re: How to calculate damages for disability discrimination c

Postby tommydog » Fri Apr 07, 2017 12:16 pm

After further research I fear I am out of time for a direct claim under the equality act (6 months) But my question is can I still go for breach of contract? My student enrolment and learning agreement makes it clear that the university will abide by their disability policy (15 page document) and refrain from discrimination on the ground of sex, race, disability etc. Having read the university disability policy, there are clear breaches, and if this formed part of my contract with the university, can't I just pursue them for breach of contract instead of a direct claim under the equality act? That way I have 6 years.
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Re: How to calculate damages for disability discrimination c

Postby blig » Fri Apr 07, 2017 7:05 pm

Employment RIghts Act 1986

230. In this Act “worker” (except in the phrases “shop worker” and “betting worker”) means an individual who has entered into or works under (or, where the employment has ceased, worked under)—

(a)a contract of employment, or

(b)any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual;


On the limited information posted you might come under the description of worker in (b) and so have some protection, but you are too late to start a tribunal claim without permission.

As previously I don't see merit in a claim for breach of contract against the university. It isn't a reasonable expectation that a university provide a stress free environment, and it would have been reasonable for you to have approached some of the university staff, even if the author of the letter had seriously upset you. On the limited information here I'd expect a costs award against you if you tried to take a breach of contract claim against the university. Looks that you have left this too late.

EASS may give you a second opinion if you ring them
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