D1 – Bingo: Retaliatory allegations

Makes false allegations against you

Making a counter-allegation against you that you were abusive at the time of an access failing is amazingly common, from small and large organisations alike.

We are not entirely sure why organisations do this but some likely reasons could include:

  • Scaring you off pursuing your complaint by making you scared by the allegation?
  • Damaging your credibility as a complainant?
  • Justifying refusal of service as “your bad behaviour, not your disability”?
  • Stereotyping you as an “angry disabled person” with a chip on your shoulder?
  • Staff members lying to avoid getting into trouble for their failings?

Gather evidence to disprove allegations

We recommend you consider ‘gathering evidence’ via things like audio or video recordings at times of likely access failings, or if you realise things are going badly. That way you can prove that you were not abusive and add ‘false or malicious allegations’ as an element to your complaint. In legal case terms, you may be able to add aggravating factors, victimisation or harassment to your claim. If you have no evidence, ask the organisation to provide evidence of your supposed aggressiveness, because otherwise it is just an unsubstantiated allegation.

Accusation that you planned to complain

Sometimes organisations will accuse you of planning to experience access problems with them and using this to plan a complaint. While in strict legal terms it shouldn’t matter whether you ‘planned’ to encounter access failings and complain or not, the reality is that if you are perceived as making too many complaints, some judges can be swayed against you on those grounds and reduce the remedy awarded even if your legal complaint is upheld.

We recommend being clear in your complaint and (if needed) legal papers that planning to encounter access failings is not unlawful. You can direct the reader to case law Roads v Central Trains paragraphs 18 and 19 in the judgment. Another comparison worth trying is speeding: if a driver speeds they should not complain if they are caught, the solution to being punished for speeding is not to speed.

Assumptions about impact of repeated discrimination

We have come across cases where judges will say that experiencing repeated discrimination has less impact on a disabled person because it’s their “normal experience”. In our experience and those of disabled people we have asked; repeated discrimination is more hurtful over time, not less. One strategy can be to explain this in very simple terms in your witness statement, and if necessary ask another disabled person to write a witness statement about their experience of repeated discrimination, to support your view.

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