Written submission from Leigh Day & Co (EEA0069)

1. This written evidence is submitted on behalf of Leigh Day Solicitors.

Leigh Day are a specialist law firm employing some of the country's leading legal professionals and with a nationally recognized multiple award winning employment department. Unlike other law firms we act exclusively for claimants who've been injured or treated unlawfully by others. This often involves taking on complex claims, under the Equality Act 2010 [‘EQA’), and working collaboratively with EHRC to ensure justice is done.

How easy it is for people to understand and enforce their rights under the Equality Act?

2. There remain significant hurdles to claimants understanding their rights under the EQA.

3. While individuals are generally aware of the right not be discriminated against, the specific legal duties are (in our experience) not widely known and the legal tests that must be applied to benefit from protection of EQA are rarely known. This lack of public awareness means that it is unusual for action to be taken to enforce rights under EQA particularly without trade union assistance.

4. We are concerned that the inability of individuals to access the justice system means that the current system for enforcing rights is not fit for purpose. As former President of the UK Supreme Court Lord Neuberger has observed:

“At its most basic, the expression [the rule of law] connotes a system under which the relationship between the government and citizens, and between citizen and citizen, is governed by laws which are followed and applied. That is rule by law, but the rule of law requires more than that. First, the laws must be freely accessible: that means as available and as understandable as possible. Secondly, the laws must satisfy certain requirements; they must enforce law and order in an effective way while ensuring due process, they must accord citizens their fundamental rights against the state, and they must regulate relationships between citizens in a just way. Thirdly, the laws must be enforceable: unless… a right to protection against abuses or excesses of the state, or a right against another citizen, is enforceable, it might as well not exist …”[1]

Complexity

5. While the plain wording of the central provisions of EQA is laudable (although there are many schedules which contain important provisions which are easily overlooked) it must be recognised that the continual development of case law can create a barrier for laypersons. Public legal education around these topics has been lackluster. The excellent EHRC Statutory Code of Practice[2] stretches to 326 pages - while this guidance is very useful for experienced legal professionals, equality officers and HR staff, the length of this guidance indicates how complex this area is.

6. The difficulty faced by the lay person attempting to understand what their rights are is magnified when any attempt to enforce those rights is brought before a Court or Tribunal, which have their own independent sets of complex procedural rules. It is essential that expert legal advice is available to those who wish to bring such claims in order to avoid delays, stress and increased costs.

7. By way of example many non-lawyers would probably not be aware that in order to satisfy the legal definition of disability there is a complex test applied by the Tribunals and Courts which expands on the wording of the EQA by way of interpretation. Establishing disability in a disability discrimination case requires a good understanding of the definition and underlying UK and EU case law.  Expert instructions are often also necessary as many respondents require an individual to prove disability, creating an initial hurdle for the claimant to scale. 

EQA states that:

"A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities". [3]

At first blush this is relatively straightforward however the test applied by the Courts is in four major parts which each may have their own tests within a test. As one part of this test the Court will ask itself whether the impairment is substantial and make a decision based on the following legal principles:

Substantial means more than minor or trivial or, in the words of the EAT:

"In our judgment A1 [the predecessor of B1 in the EqA 2010 Guidance] is intending to say no more than that in the population at large there will be differences in such things as manual dexterity, ability to lift objects or to concentrate. In order to be substantial the effect must fall outwith the normal range of effects that one might expect from a cross section of the population. However, when assessing the effect, the comparison is not with the population at large... what is required is to compare the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired." [4]

This is further expanded upon in guidance from the EAT which states that when this              question is being assessed:

1. The focus should be on what an employee cannot do or can do only with difficulty, and not on what they can do easily.

2. The decision-maker should look at the whole picture, but should not attempt to balance what an employee can do against what they cannot do.

3. The statutory Guidance should not be used too literally and, in particular, its examples are illustrative only. They should not be used as a checklist.

4. The fact that an employee is able to mitigate the effects of an impairment, for example, by carrying things in small quantities, does not prevent there being a disability.[5]

This is a four part legal test that exists within an already complex four part legal test which must be satisfied in order to persuade the Court or Tribunal that an individual suffers from a disability.

8. Intersectional discrimination poses a significant hurdle as individuals may not realise that they are pleading different claims requiring different comparators – for example a black woman will need to compare herself against a white person (man or woman) for race and a man (black or white) for sex.  Race and religious discrimination cases tend to be more vulnerable to strike out or deposit orders than other types of discrimination, which may not be clear to laypersons. Additionally, if an individual is relying on stereotyping to bring a claim of discrimination, then s/he may need to prove that the stereotype is linked to the relevant protected characteristic. 

9. Indirect discrimination is a very complicated area of law which is likely to need legal expertise for the pleading and evidential aspects of the case.  The identification of a discriminatory provision criterion or practice [‘PCP’] and the comparator pool is often contentious and not clear cut. The cases of Naeem and Essop[6] indicate the level of contention and  complexity being such that it required that clarity be sought from the Supreme Court on the issues.  The concept of objective justification is also difficult to grasp without the benefit of some legal experience and/or training.

10. Despite the recent sexual harassment cases in the news, there is no indication that more women are bringing claims in the Employment Tribunal.  This is understandable given the difficult facts of such cases, as well as the limited limitation period which act as hurdles in accessing justice.

11. Equal pay is also a very complicated aspect of the EQA – whilst there is a process set out in the Employment Tribunal Regulations 2013 [‘ET Rules’] for dealing with equal value claims, the timetable is rarely so efficiently run. 

12. These are just some of the legal concepts which establish the legal complexity surrounding the enforcement of EQA rights.

13. There is a clear need in most cases for the input of professional legal advice. Without professional support individuals seeking to enforce their rights of their own accord run a significant risk of their claim failing for technical reasons that they are unlikely to apprehend and of becoming exhausted by an unfamiliar and very technical process.

14. Additionally, aside from the EQA, ET Rules were intended to be jargon-free and easy to use.  However, in recent times, we have seen an increase in Respondents making technical arguments in order to stymie claims. By way of example the Farmah[7] case, which is now due to be heard in the Court of Appeal, will determine the correct approaches to rules 6 and 9. The correct application of these rules has been made opaque by case law developed subsequent to the 2013 rules being enacted.

15. It may be preferable for separate rules to be applied in the case of litigants in person to ensure that the Overriding Objective can be met in those cases.  We understand that ELA has now set up a pro bono initiative in some of the Employment Tribunals whereby litigants in person can seek some legal input on the day of their hearing – we understand that this has been well-utilised by litigants in person.

Cost

16. Cost is a significant barrier to enforcement. Courts fees to bring civil claims and previously the Employment Tribunal fees regime are a barrier to enforcement. The people who suffer most through discrimination are often highly vulnerable and financially stressed. It is not possible for an individual to commence legal action in the County Court, to enforce their rights under the Equality Act 2010, without paying a Court fee of at least £455 in order to obtain the usual level of compensation for such claims. While some are assisted through fee remission schemes the majority of people do not have the necessary funds to bring such a claim.

17. The removal of Employment Tribunal fees has had a clear and immediate positive impact on the numbers bringing claims of all types since their removal. 

18. The cost of instructing a legal professional to commence legal proceedings is a barrier to enforcement. Per above proceedings under the Equality Act 2010 are very technical and complex. The value of the goods and services claims is often low (£5,000 - £10,000) with the main remedy being a change to practices and procedures. This is a disincentive for solicitors to offer damages or conditional fee agreements for these types of claims.[8]

19. Additionally the cost of pursuing discrimination claims in the Employment Tribunal are often high, which benefits employers who can rely on financial advantage in seeking settlement of claims. This becomes particularly relevant when reviewing whether a claim is suitable for a damages or conditional fee agreements, those on low incomes are much less likely to receive support as there is often minimal/no cost benefit in their claims.

20. The provision of a service for publicly funded discrimination advice through CLA (Civil Legal Advice) is not fit for purpose. We welcome the EHRC enquiry into how the present system operates[9]. We are aware that the firms awarded the CLA contract are not in a position to pursue claims through the civil courts as grants of Legal Aid[10] that would allow this type of assistance are only made in the most exceptional of circumstances. One of our solicitors who previously worked on a CLA contract was able to obtain Legal Aid only after spending 8 months of time, exhausting the Legal Aid Agency’s internal appeals process and threatening a Judicial Review. In order to progress the successful claim funding was applied for he had to carry out the work without funding in place for a substantial period of time. An unsuitable model for provision of advice where there are tight time limits and potentially significant costs consequences if the claim is unsuccessful. [11]

21. Additionally there is a very narrow band of people able to benefit from support with funding through CLA, this leaves the majority of the population unable to access legal advice to pursue discrimination claims. As former President of the Law Society Joe Egan observed:

“No one in modern society should have to choose between accessing the justice system and a minimum living standard. The financial eligibility test for civil legal aid is disqualifying people from receiving badly needed legal advice and representation even though they are already below the poverty line”[12]

22. The risk of costs being awarded against a Claimant if they miss a Court deadline or if their claim is otherwise unsuccessful is a significant barrier to justice. The prospect of a vulnerable individual potentially failing to file a Court document on time and facing a costs bill that could be well into six figures is a  significant deterrent. There are very few insurance companies willing to provide after the event (ATE) costs insurance for discrimination claims in the civil courts. It has been argued for some time that Qualified One Way Costs Shifting should be applied to claims brought under EQA[13] and indeed this sensible recommendation has been made previously, though unfortunately no action has been taken to implement it. It is our view that the implementation of QOCS in discrimination claims within the Courts and Tribunals would encourage more legal professionals to offer their services in this area.

How well enforcement action under the Equality Act works as a mechanism for achieving widescale change

23. Due to the difficulties set out above widescale change is made difficult.

24. It is notable that a significant number of cases that have a wider social impact require the support of Trade Unions, the EHRC or charities. Previously such claims had potentially attracted public funding but this is now only available in the most limited of circumstances. The chilling impact of the cuts to public funding in employment and more generally cannot be overstated.

25. In order to make widescale change there must either be a significant commitment to access to justice from a legal professional bringing a claim for a significantly reduced/no fee or a large amount of money available to the individual bringing the claim. Claims capable of making widescale change usually take some years to come to fruition and are hotly contested through the hierarchy of courts. Put simply there is very little/no financial incentive to pursue claims under the Equality Act through the civil courts and increasingly the same applies for the majority of cases in the Employment Tribunal.

26. Of significant concern is the tendency for employers in both the public and private sectors to enter into confidential settlements. Such settlements mean that an individual who brings a claim may have their issues resolved confidentially but the wider issues continue unabated. Should the individual wish to reject the offer and continue to pursue the claim in order to achieve wider systemic change they may be threatened with significant adverse costs consequences. From our experience, we have seen increasing costs/deposit orders made against claimants in pursuing race discrimination cases which are complicated cases to evidence – this is a deterrent to all potential claimants not just unmeritorious claims. 

27. Recommendations used to be made in all discrimination cases where the Respondent lost, but these are now only made where the individual remains employed by the Respondent.  The change in legislation was made in the name of reducing red tape, but the consequence of so doing has been to reduce the impact of a decision which has gone against an employer to enforce change.

How effective and accessible tribunals and other legal means of redress under the Equality Act are, and what changes would improve those processes

28. Issues with the effective presentation of claims and accessing legal redress are dealt with above.

29. In terms of accessibility from a more practical perspective Tribunals and Courts buildings are often accessible in and of themselves however the continued closure of Courts and Tribunal mean that individuals have to travel many miles in order to attend hearings. This can present significant difficulties for those on low incomes, with caring responsibilities and with disabilities. The program of Court closures should be halted while more detailed impact assessments are carried out and views expressed in consultations, by court users, should be respected and acted upon rather than ignored.

30. There are continued issues with obtaining Court documents in accessible formats (particularly for those who are blind) and this should be addressed as priority by the HMCTS and the MoJ.

31. However, the Tribunals are clearly in a crisis at this time with lack of judicial and administrative resources which is hugely delaying the claims process and increasing costs for all parties.  In some cases, individuals are waiting two years for a final hearing from issue of their claims where previously the claim would have been dealt with within twelve months. 

32. There is also an issue with the make up of the Tribunals themselves. Recent attempts to encourage diversity are laudable, and the Tribunals are more representative than the Courts[14], this work needs to continue in order to ensure that Claimants and lawyers alike see that the make up of the judiciary accurately reflects the diversity of the general population.

33. There have been previous discussions about one single employment and equality court which would be beneficial for Claimants, Respondents and the justice system generally. Such a court could deploy their particular experience and expertise to deal with cases in a more expeditious and empathetic manner. This would be of particular benefit in goods and services claims which face significant barriers (as set out above). 

How effective current remedies for findings of discrimination are in achieving change, and what alternative or additional penalties should be available

34. For employment cases an award for injury to feelings alone (without costs) may not be sufficient to give any employer an incentive to change. 

35. In the Employment Tribunal it would be useful to give the Employment Tribunal the power to make orders requiring organisations to amend their discriminatory policies (see above re recommendations). Many cases settle rather than fight, but it would be useful to consider imposing additional penalties on employers who lose their cases. It is unclear whether any equal pay audit has been ordered since the introduction of such provisions.

36. In both venues:

• Punitive damages should become the norm for those organisations that have breached the EQA with increasing punitive damages for repeated breaches. This money ought to be utilised to fund free legal advice
• A fine that could be retained by HMCTS to assist with resourcing issues (the ‘polluter pays’ principle)
• There should be a register listing the number of EQA claims brought against organisations setting out whether the claim was successful, unsuccessful or settled
• Statutory questionnaires must be reintroduced to allow individuals to obtain more information about their claims

The effectiveness of the Equality and Human Rights Commission as an enforcement body, including:

1. Whether the powers the Commission has are sufficient and effective;
2. Whether the Commission is using those powers well;
3. Whether changes are needed to the Commission’s approach to using its enforcement powers as set out in its policies (such as the strategic litigation policy and compliance and enforcement policy) or as implemented in practice, and the way it identifies and selects legal cases to lead or support;
4. Whether the Commission uses enforcement action appropriately and effectively as part of its wider strategies for advancing equality;
5. Whether the Commission’s role as an enforcer is widely known and understood and acts as a deterrent to discrimination.
6. Whether there are other models of enforcement, in the UK or other countries, that could be a more effective means of achieving widespread compliance with the Equality Act 2010, either overall or in specific sectors.

37. Adopting the numbering above:

1. The EHRC should be empowered to act as an Ombudsman in relation to discrimination. They should be given the power to investigate issues, levy fines and name and shame transgressors. This extension of powers could be at least partly funded based on the ‘polluter pays’ principle set out above. The requirement for EHRC to carry out enforcement action through the Courts acts as a brake on their effectiveness as such action is costly and time consuming

2. As a result of budget cuts the EHRC is often not able to carry out its role effectively. It does well with the limited resources at its disposal. Simply put there are too many cases to be brought and not enough funding available to pursue them. We wish it to be noted that the EHRC and its staff are highly regarded by Leigh Day and that they play an important role in the enforcement of EQA based rights in spite of the limited resources at their disposal

3. See 2 – we would like to see more support from EHRC in all forms of litigation but particularly in strategic litigation, without appropriate funding being allocated to EHRC by the government this will not happen

4. See 2 & 3

5. The existence of EHRC is known but as a result of a diminution in funding over a number of years it does not act as a deterrent even in government decision making. See 2 & 3

6. See 1

Action Points

38. We suggest the following as practical measures that would assist the general public to enforce their rights under the Equality Act 2010:

• Re-establish suitable public funding for locally accessible face-to-face employment and discrimination advice

• A review of whether the current financial eligibility criteria, to access publicly funded legal advice, is too restrictive

• Set up a single properly resourced Tribunal (operating out of existing hearing centres around the country) to deal with discrimination claims of all types. These claims must be capable of being made without a fee being levied on the Claimant

• Introduce QOCS for civil discrimination claims

• Allocate the EHRC further funding in order that it can support more claims

• Introduce the ‘polluter pays’ principle in discrimination claims to obtain funds for HMCTS

• Carry out a detailed review on the accessibility of Courts and Tribunals to include physical issues and the provision of adequate support to ensure Claimants and Respondents are able to effectively participate in proceedings. Including halting any further closure of courts and hearing centres until detailed Equality Impact Assessments have been carried out in each case

• Empower the EHRC to act as an Ombudsman in discrimination matters

• Reintroduce discrimination questionnaires

• Give Employment Tribunals the power to award the same remedies as the civil courts in discrimination matters

October 2018