Is Britain Fairer? The state of equality and human rights 2015 is the Equality and Human Rights Commission’s statutory five-yearly report on equality and human rights progress in England, Scotland and Wales. Click link for full report.
November 2015: The High Court has today ruled that the Secretary of State for Work and Pensions has unjustifiably indirectly discriminated against unpaid carers for disabled family members by failing to exempt them from the Benefits Cap. The Court upheld the Equality and Human Rights Commission’s submission that carers’ Article 14 rights under the European Convention on Human Rights had been contravened by not considering the impact on disabled people.
6th April 2014 was the date set for the abolition of the statutory questionnaire procedure. Just as a reminder, the government decided to remove the statutory equality questionnaire process as part of its ‘red tape’ consultation; that was despite a whopping 83% of respondents to the consultation being opposed to it.
So what was the questionnaire process and was it even important?
Well, the process has been around since the first equality legislation with the Sex Discrimination Act in 1975, with the most recent being embodied in the Equality Act 2010. It was a process that allowed claimants at an early stage to ask questions about their potential claim to the alleged discriminator. In the right hands it could be a very powerful tool – enabling the claimant to gain significant information at an early stage, often before proceedings were even started. The questionnaire process recognised the difficulties faced by claimants and sought to offer some way in addressing the imbalance by enabling them to secure information that potentially would not be secured through any other route. It also helped to determine whether they had a case or not; early information in many cases encouraged settlement before tribunal or court proceedings were issued. Since the government introduced fees for tribunal claims, the questionnaire procedure had taken on increased significance for claimants.
If a respondent failed to reply to the questionnaire or provided evasive or equivocal replies, the courts and tribunals had the power to draw adverse inferences, which again was a really important tool for the claimant to use.
So what now?
It is clear that the removal of the ‘statutory’ process has not removed the claimant’s ability to ask questions of the potential respondents. Indeed, ACAS has now introduced guidance on how to do this, which appears more detailed than the original statutory guidance. It can be found here (PDF)
It is hard to see how this 26 page booklet helps in any way to reduce the bureaucracy of what was a widely understood and well established procedure like the statutory questionnaire. The 6 step process introduced by this guidance in fact bears a strikingly similar resemblance to the previous process and there is even a template to fill in. To top it all, the guidance emphasises that whilst it is a voluntary rather than statutory process the courts and tribunals may still draw adverse inferences from a refusal to respond or evasive answers –
‘A responder is not under a legal obligation to answer questions. However a tribunal or county/sheriff court may look at whether a responder has answered questions and how they have answered them as a contributory factor in making their overall decision on the questioner’s discrimination claim. A Tribunal or court may also order a responder to provide such information as part of legal proceedings in any event. These are issues a responder would need to weigh up when considering if to reply and what to say.’
So things don’t appear to be that different after all….in fact, having ACAS guidelines is likely to encourage people that would never have used the questionnaire process previously, to do so now. It is likely to be quoted in increasing numbers around our courts and tribunals.
For those of us who help people to exercise their employment rights it feels as if we are facing a brick wall; one that the government appear determined to make even higher. Changes to the employment tribunal system have crept in almost unnoticed by the general population; changes that erode rights hard fought for over the years. Unfair dismissal claimants now must have 2 years qualifying service (it was one year – introduced under Labour) and shortly they will be subject to a 12 month wages compensation cap. 3rd party liability for harassment is being repealed in discrimination claims as is the ability to serve an equality questionnaire to gain evidence of discrimination. But next week we have the biggest change of all – the introduction of fees for making an employment claim. On 29th July, the fees go live and will cost each claimant up to £1200 to take a case through hearing. Not an insignificant sum of money, certainly enough to prevent many people from pursuing a case against their employer.
The government says that it is about covering the costs paid out of the tax payers pocket, but in reality it seems to be more about letting businesses off the hook. Thousands of people will be excluded from making legitimate claims against their employer – while businesses will be less inclined to abide by their legal obligations. What’s the point when the chances of you being challenged are so much reduced?
But are the Tribunals ready for this change? It appears not. Since centralisation of tribunal administration (yet another recent change), we like many other organisations have noticed the problems with delays in correspondence and hearings. This additional burden is bound to cause even more delays and confusion than before. In fact although the 29th July is almost upon us the law which brings in this change has still not been passed. The new tribunal application form, the process for handling payments and the fee remission systems are all still a mystery….yet the new Employment Tribunal rules which come in the same day specifically require the rejection of any application that does not come in with the fee remission form or the fee…. It is most definitely a case of ‘watch this space’.
Did you know that your Trustees can be found individually liable for their actions in discrimination? In a recent case Bungay and another v Saini two board members of an advice centre were found to be joint and severally liable for discrimination compensation and aggravated damages.
The Employment Appeal Tribunal held that the 2 board members were ‘prime movers’ in a campaign of religious discrimination against the claimants which led to their dismissal. They were found to be acting as the organisation’s agent and therefore jointly and severally liable with the organisation itself.
The importance of this, is that the board members were responsible in full, in the event that they were pursued by the former employees. So if the organisation went into liquidation, the individuals could be pursued for the entire sum of the compensation. In light of this, those involved in running and managing charities need to be aware that even though they are not employees of their organisation they can be held financially liable for the actions they commit on behalf of the organisation.
Trustees and managers should not assume that their actions in relation to their employees will be protected by the legal entity they work for.
On the 1st September 2012 a little heralded change under the Equality Act 2010 took place – all schools became subject to the duty to provide auxillary aids and services to disabled pupils. The EHRC has provided technical guidance on this
Although in practice many disabled children will have Special Educational Needs (SEN) identified and as a consequence may be receiving support, this will not be true of all children. Just because a child has SEN or has a statement does not take away a school’s duty to make reasonable adjustments for them. In practice many children who have a statement of SEN will receive all the support they need through the framework and there will be nothing more that the school has to do. However some disabled pupils may not have SEN and some who have will need additional reasonable adjustments.
The guidance from the EHRC sets out factors to take into account in considering what is a reasonable adjustment:
- the extent to which support will be provided to the disabled pupil under the SEN framework
- the resources of the school and the availability of financial or other assistance
- the financial and other costs of making the adjustment
- the extent to which taking any particular step would be effective in overcoming the substantial disadvantage suffered by a disabled pupil
- the practicability of the adjustment
- the effect of the disability on the individual
- health and safety requirements
- the need to maintain academic, musical, sporting and other standards
- the interests of other pupils and prospective pupils
Some useful case studies are referred to:
A disabled pupil with ME finds moving around a large three storey secondary school very tiring and despite the school adjusting the timetable and loaction of classes to minimise the amount she has to move she is still too exhausted to complete the school day. The school then makes further adjustments of having a ‘buddy’ to carry her books for her, a dictaphone to record those lessons that she misses and a policy that she will not be penalised for arriving at lessons late. These adjustments enable her to attend more lessons and to be less disadvantaged when she does miss lessons.
An infant school disabled pupil with ADHD receives some individual teaching assistant support through the SEN framework. He is diagnosed with severe asthma and needs assistance with his nebuliser. Although this is not a special educational need, his asthma is likely to be a disability for the purposes of the Act and so a failure to provide a reasonable adjustment will place him at a substantial disadvantage. The school trains up his teaching assistant and she provides him with the assistance he needs.
New guidance for schools on the public sector equality duty was also published on the EHRC website
Schools who are interested in their responsibilities under the Equality Act can contact us to to book a place on our next training session in conjunction with Cheshire Development Education Centre on the 20th March.
Although the issue of whether volunteers can be employees for employment law purposes is one that has been looked at many times before, we now have the continuing case of X v Mid Sussex CAB who is alleging that the Framework Employment Equality Directive applies to volunteers and that its provisions have direct effect in domestic (UK) law. This would essentially mean that volunteers would be protected by anti discrimination legislation. The case was heard in the UK Supreme Court at the end of October and we are now awaiting the judgment, which could have massive repercussions on voluntary sector organisations across the country. The facts of the case were that the claimant was a volunteer adviser at the CAB. When she told her manager that she was HIV positive she alleges that she was told she could no longer work at the CAB as this was considered a risk to staff. She wanted to claim disability discrimination, but the employment tribunal held that volunteering was not within the scope of employment, because it did not cover voluntary work. The Supreme Court has a policy choice to make: require those who rely on volunteers to be liable to defend themselves against claims of discrimination…or will it think that it cannot be right that there should be no legal remedy for a volunteer who was badly treated by a third sector group because of their disability, colour etc? Watch this space.
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From 1st October this year the Equality Act prohibits age discrimination in the provision of services, the exercise of public functions and in relation to associations. So organisations delivering services will need to consider how this affects them. An example that was cited recently was of welfare benefits applications being made only on-line may be indirectly discriminatory on the basis of age for older people are less likely to have access to a computer or be computer literate. There are some exceptions that the Government considers to be ‘justifiable, beneficial or needed for good public policy reasons’ – these include financial services, age based concessions, age related holidays, private clubs and sporting events eg under 21s tournament.
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