Rest, disability & work: applying diffractive analysis to counter disabling hermeneutical injustice in the justice system – Becca Jiggens

Author: Becca Jiggens 

Abstract: My PhD research employs a new materialist agentic ontoepistemological framework to consider case law on reasonable adjustments in the employment context to inform critical rewriting of disability judgment, following the Feminist Legal Judgments project approach. My research models the value of a new materialist agentic framework for understanding judicial decision-making in a minority rights context to mitigate the risk of epistemic injustice owing to a lack of hermeneutical resources available to the court for understanding the experiences of Claimants.  

This paper uses this model of socio-legal analysis developed in my PhD to explore rest and disabled working lives. The legal framework of working time, health & safety, and adjustments for disability are diffractively ‘read through’ (Barad 2014) disabled people’s activist theorising via Spoon Theory (Miserandino 2003), Crip Time (Kafer 2013; Samuels 2017), and Rest as Resistance (Hersey 2022). This diffractive reading of legal frameworks through activist theorising is used to expose areas that create risk of hermeneutical injustice in the operation of judicial decision-making. Legal questions of reasonableness, proportionality, and balance of probabilities civil standards of proof are resituated in embodied disabled realities, as the construction and operation of legal tests relevant to workplace stress, working time, and disability discrimination civil claims, are ‘read back’ diffractively through activist theorising. 

The diffractive reading is put to work in considering litigation strategies for the presenting of claims and early case management stages of the Employment Tribunal. The very low number of ET cases that proceed to final merits hearings reveals that the impact of hermeneutical injustice influencing judicial decision-making in the ET will be predominantly experienced at case management stages, where litigation realities heavily restrict the opportunities to identify, much less directly challenge, such injustice. The paper concludes with strategies for practitioners and activists drawn from the diffractive reading for positioning rest as central to disability justice, in the language of the courts and the interests of the overriding objective. 

Author bio: I’m a part-time PhD candidate at the University of Leeds, researching critical jurisprudence of reasonable adjustments in employment. After a 20-yr career in the charity sector beset with experiences of disability discrimination, I got my LLM in Employment Law & Practice and founded Just Reasonable Ltd, a non-profit organisation providing full litigation representation in the Employment Tribunal. My day job is co-leading The Work Inclusion Project Ltd, supplying specialist in-work support to disabled academics, professionals & entrepreneurs. (she / her)