23 January 2014

By Janet Newsham

Janet Newsham reports on the lessons learned from yesterday’s (22 January 2014) Equality and Discrimination conference held by the Institute of Employment Rights.

Opening the conference, Director of the Institute of Employment Rights Carolyn Jones reminded delegates that inequality is only getting worse. The gap between rich and poor is still increasing, and there are thousands of workers denied even a minimum wage. Wages have dropped by as much as 26% in Blackpool: nearly double the average fall in wages – and the North West is not experiencing job growth. Meanwhile, casual work is replacing permanent jobs, and access to justice is being denied through the changes to legal aid and Employment Tribunal (ET) fees. Statutory bodies are being starved of the resources needed to support vulnerable people, while trade unions are also being denied the opportunity to stand up and challenge bad employers.

Recently, media headlines have highlighted the continual discrimination experienced by some. Elsewhere, lawyers are striking over the lack of justice. Against this background, Carolyn asked if the Equality Act 2010 is fit for purpose and if it can deliver a challenge to discrimination.

Brian Doyle – Regional Employment Judge: Employment Tribunal (ET) System and impact on equality law

Brian Doyle began by saying that, in a sense, an ET is the last and least desirable solution to workplace issues. He noted that we are coming up to the 50th anniversary of the Industrial Tribunal, which was set up to deal with a small number of disputes between employee and employer. Since 1964, however, ETs have received a whole raft of jurisdiction, one of which is the Equality Act. In total, 23% of the national case load at ETs are equality issues. In the North West, approximately 19% of the case load is accounted for by discrimination issues, with 11% on equal pay.

Doyle provided an overview of North West ETs in comparison to the National picture. He said that roughly one third of all claims settle without going to an ET, usually with the assistance of ACAS. Approximately 44% of unfair dismissal cases settle.

Just under 30% of all cases and three quarters of discrimination cases are withdrawn. Moreover, cases focusing on certain forms of discrimination are much more likely to be withdrawn, notably sex discrimination cases in which the withdrawal rate is 40%. This could be caused by the trauma and anxiety of bringing a case and begs the question: is an ET the best forum for these types of cases.

Around 12% of all cases are struck out because they have little or no reasonable prospect of succeeding, or because time limits have been exceeded or parties have failed to comply with case management orders. There are a number of hurdles that particularly expose unrepresented cases to the risk of having their case struck out.

Eventually, only around 17% of all original claims are successful for the claimant at the hearing. When you look at discrimination cases alone, this figure falls even lower, at only 4% for race discrimination claims, 3% for disability and 2% for sex.

Judge Doyle spoke about the specialist training that judges and lay members who sit on ETs have to undertake, including equality awareness training. He said that every discrimination case will get some form of tailor-made case management to raise the appropriate questions and provide detailed steer of what is required from both parties.

ETs spend a long time hearing all the evidence and bend over backwards to try to get the cases to get to a final hearing, with self-represented parties given some support to ensure their case is fully explored and heard.

Unfortunately, unrepresented cases are an increasing feature at ETs and trade unions are rarely seen nowadays.

Among the issues raised by Judge Doyle were the complexity of the Equality Act 2010. It can be difficult for an unrepresented person to understand the basic concepts of direct or indirect discrimination, and therefore what evidence is of significance. Also, case law is extremely important, but only adds to the complicated nature of discrimination cases and establishes difficult legal principles.

But the main problem, he added, is the issue of evidence. In discrimination cases, there is rarely a smoking gun. Rather, there is usually a conflict of evidence – one person’s one against another. An unrepresented person has difficult just taking notes and presenting their evidence and statements, and are often unable to present a sound enough cases to show their case has merit.

When it comes to remedies, Doyle reminded delegates that ETs have no power to reinstate a worker and even their ability to make recommendations has recently been cut. They can, however, award compensation, but when you examine the median figures of awards, they are once again very variable depending on the type of case brought. While disability discrimination cases and sexual orientation cases result in median awards of £7,536 and £6,319 respectively; race, age and religion cases result in awards of less than £5,000 (£4,831, £4,499 and £4,759 respectively). Unfair dismissal awards are also much lower at £4,832, while sex discrimination claims lie in the middleground, with a median payout of £5,900.

Since the introduction of employment tribunal fees at the end of July 2013, discrimination cases can cost £1,200 unless a remission of fees is permitted. Doyle noted there has been a ‘fall off the cliff’ for cases as a result of the charges coming into effect, with a 65% reduction in claims in the North West. The main impact has been on pay cases, where claimants now have to pay £390 before the case is even heard. As only 49% of awards are even honoured by employers, for most people justice is simply not worth pursuing.

Mary Doolin, PCS National Equality Co-ordinator: The Equality act in the workplace: How can you win for members

The next speaker, Mary Doolin, raised the question of how trade unionists in the workplace can win for their members. She said that we need to go back to bargaining in the workplace rather than relying on access to justice, which is now massively weighted toward employers in ETs.

Mary quoted the following definition of equality bargaining: “The collective negotiation of provisions that are of a particular interest or benefit to disadvantaged or under-represented groups and/or are likely to facilitate equality at work which can then bring about diversity.”

To support the equality bargaining agenda, Mary suggested several actions trade unionists can try, including:

• Checking employer policies to ensure they have been equality proofed and ensuring they are ‘living documents’. Mary warned that policies can disproportionally impact on particular groups of people, including when it comes to performance management, managing attendance policies, recruitment, grading and selection policies, redundancy and relocation.
• Training should be give for managers and all staff on equality (not just online tickbox exercises)
• All policies should include an agreement on publicity, implementation and monitoring
• All policies should be circulated to all workers explaining why they have been adopted
• Equality monitoring should be shared with trade unions
• Equality mapping should be carried out in the workplace (if this is not performed by the employer, it should be by trade unions). Also, this is not a one-off; it should be continual
• Equality officers should work with other branch officers to map the workplace
• Unions should still ask their employers to conduct an Equality Impact Assessment. It provides employers with tangible evidence on how public bodies are meeting their duties under the Act.
• Questions that trade unions should ask to support ‘due regard’ in redundancy situations include:
• Is the purpose of the financial proposal clearly set out?
• Has the equality impact assessment (EIA) considered all available evidence?
• Have those likely to be affected by the proposal been consulted and involved?
• What course of action does the EIA suggest? And is it justifiable?
• We need to remind our employers that they have statutory obligations to assess the impact on all groups of any proposals, cuts in services or redundancies before making any decisions

Finally, Mary reminded us that the Government is rendering the Equality and Human Rights Commission ineffective and that it is even more important now than ever to take up the bargaining agenda.

Nadia Motraghi, Old Square Chambers: The Public Sector Equality Duty: changes and challenges

Nadia Motraghi took us back to basics, explaining what the Public Sector Equality Duty (PSED) is. Section 149 of the Equality Act 2010 spells it out. A public authority must, in the exercise of its functions, have ‘due regard’ to the need to: eliminate discrimination, harassment and victimisation, advance equality of opportunity (removing disadvantages and meeting the needs of the disadvantaged), and the need to foster good relations (to tackle prejudice and promote understanding). The PSED also covers employees who work for organisations sold off by the state if there is a complaint about a public function.

Motraghi also explained that compliance only isn’t a duty to achieve results, but that ‘due regard’ is used to achieve the goal. Due regard has to be appropriate in all circumstances. It is a rigorous exercise that has to be considered before any decision or change is implemented. Also, it is not just about giving consideration, but also of performing an analysis of relevant materials.

Equality impact assessment results can be weighted, but only within the bounds of a ‘no reasonable authority’ test.

There is a list called Brown Principles, which has been set out from case law, as follows:

• Decision makers must be aware of the Duty
• The Duty must be fulfilled at the time the decision is taken
• The Duty must be exercised with rigour and an open mind
• It is good practice to refer to the Duty specifically
• It is a non delegable duty
• It is a continuing duty
• Proper records should be kept

In a recent case of prisoners who were placed in hostels as part of their rehabilitation, it was found the provision of this accommodation was unsatisfactory as there are only about six hostels around the country and women are placed at a disadvantage. This case exposed the authorities for not having gone through a rigorous procedure to carry out an EIA.

The EHRC have some good guidance here.

The PSED was recently reviewed by the Coalition Government, and this review recommended that it should be reconsidered in three years’ time, as well as that there is too much box ticking, not enough goal achievement, a lack of cost-benefit analysis or evidence of improvements in outcome, and too much paperwork. As a result, the EHRC has been tasked with providing clearer guidance.

Finally, Nadia reported on the Unison challenge to the Tribunal Fees, which included a failure to comply with the PSED when deciding to introduce fees. Unfortunately, this Judicial Review is now overdue and there is no indication of when it will be delivered.

Sally Brett – Senior Equaility Policy officer, TUC: Where next for equality: A view from the TUC

Sally Brett introduced the session by quoting the mayor of London Boris Johnson, who has publicly supported inequality as ‘a good motivator’. She said that the next general election is going to be very important with regards to equality.

Inequality is growing. There are tax cuts for the super rich, while women are hit hardest by cuts and disabled people’s lives are being destroyed. She spoke about the hysteria on immigration, the rise in hate crime, and rhetoric about red tape being used to undermine the importance of equality. Our legal rights are also being weakened through repeals to the Equality Act, the statutory equality body being starved of resources, and interference in its role through interventions like an economic growth duty on all statutory bodies.

After consulting trade unions, the TUC has found that it is becoming increasingly more difficult to negotiate on equality issues. As many as 40% of trade unions said that equality policies are being diluted and that there is evidence that disabled people are being managed out rather than reasonable adjustments made.

Evidence at the TUC shows that ET justice has fallen off the cliff and that remission of tribunal fees is scarce.

Sally reported on some of the improvements that have been introduced, although each of them are somewhat weaker than hoped. These include shared parental leave from 2015 (but at £137 per week pay is so low the government’s own impact assessment suggests only 2% to 8% of men will be able to take advantage of the new policy); the extension of the right to request flexible working (but the statutory procedure is likely to be repealed); the power for tribunals to order equal pay audits (but only if discrimination can be proved); and equal marriage (but LGBT inequality remains in pensions).

At a policy level, however, there have been some real successes. The EHRC’s general duty has been successfully defended, changes to the shared parental leave scheme have been secured, the PSED and specific duties are still on the statute books, plans to close the independent living fund have been declared unlawful, trade unions have had input into the ACAS guidance to replace discrimination questionnaires and right to request flexible working, and of course hopefully Unison’s challenge to ET fees will bear fruit.

Finally, Sally spoke about the work ahead including challenging austerity and the hostile political climate, reinstating legal rights and access to justice, a better and more inclusive public sector, and support for unions to organise and bargain effectively for greater equality.

Victoria Phillips, Thompsons Solicitors: Equality: workplace rights under attack

Victoria introduced her session by talking about the government agenda and the way it is undermining anything to do with equality through derogatory language, and the ideological insistence that equality law is expensive and irrelevant.

The reality of the situation is acutely different. Equality legislation is essential to supporting workers and challenging bad employment practices.

Victoria focused her talk on the outsourcing issues around free schools and academies, where national bargaining is being excluded, reps’ time to negotiate is being cut and workers’ rights are being changed under amendments to TUPE.

She recommended that several issues are worth pursuing through collective bargaining, including a review of terms and conditions in light of equality law changes, as well as negotiating equality audits into agreements. The living wage is also an important negotiating point. Meanwhile, in light of government attacks on workers’ protections, trade unions are presented with a recruitment opportunity, particularly among those who are affected by ET fees, reductions in workers’ rights, and non-traditional groups adversely affected by attacks on equality.

There was a recognition at the conference that the courts including employment tribunals, are becoming even less able to provide a safety net for vulnerable workers, and the solution is clearly that we need strong trade unions; that are active and vigilant in the workplace, challenging bad practice and bad decisions.