More barriers to justice for those fighting for equality
Tomorrow the TUC will be hosting our annual discrimination law conference with Equal Opportunities Review. Since 1995 the conference has provided a valuable opportunity for trade unionists, advice workers and NGOs who assist victims of discrimination to share strategies and to hear from leading barristers and experts in field.
When we first ran the conference 18 years ago, we had no idea how discrimination law was going to expand. At that time all we had in place were sex and race discrimination laws dating back to the 1970s, with legislation to protect disabled people from discrimination in the workplace due to take effect later that year. Since then, we’ve seen discrimination based on a wider range of protected characteristics become unlawful (gender reassignment, sexual orientation, religion or belief and age) and the new bans on discrimination extend from just covering employment to apply to a much wider range of activities (though we still await the extension for age).
Let’s not forget either that it was in response to the institutional failure of the police and criminal justice system in dealing with the racist murder of Stephen Lawrence in 1993 that the important step was taken of imposing a statutory duty on public bodies requiring them to take active steps to eliminate discrimination and promote equality in all that they do. This duty was recently extended to cover all the protected characteristics in the Equality Act 2010, a landmark piece of legislation bringing together all our disparate discrimination laws.
But after years of positive developments, the outlook for equality law looks bleak and the progress we have made threatens to go into reverse. This Government is shortly expected to announce its response to the Red Tape Challenge on equality – an exercise in which it actively sought views from businesses on what bits of the Equality Act should be scrapped. It has already decided not to commence some of the new progressive measures in the Act (e.g. the socio-economic duty on public bodies) and seems intent on repealing others (e.g. the protection it gives employees who suffer repeated racist, sexist, homophobic or other abuse from customers or service users).
But perhaps the greatest threat to progress is not from changes to the legal rights themselves (most of these are underpinned by EU law requirements) but to the practical realisation of them. Whilst we have good legal protection on paper, ensuring that this is the case in practice is another matter. Discrimination case law is notoriously complex and it is increasingly hard to point to that one smoking-gun statement or overtly discriminatory act. Bias is still there but it is hidden behind more palatable reasoning or is unconscious, often the result of apparently neutral policies and practices which on examination are found to unjustifiably disadvantage certain groups.
Even when discrimination claims are brought to tribunal, they are far from being good experiences for the victims, as various research has shown. For example, a study by the Institute of Employment Studies found that individuals who brought race discrimination claims found it a difficult experience, reported lasting negative effects, such as mental health problems, reduced income and difficulties in securing proper references and future employment. And despite, the very high awards reported in a few cases, such as in the ‘sexism and the City’ cases which reflect loss of earnings for very highly paid claimants, the median awards for most types of discrimination case last year were between £5,500 and £6,892.
The Government’s proposal to charge individuals for use of employment tribunals is the latest obstacle to be thrown in the path of victims seeking redress. As discrimination cases are among the most complex cases to be heard by tribunals and the reasoning for introducing charges is that claimants should contribute towards the cost of hearing their cases, it is proposed that the charges for these cases should be higher than for others. Under the proposals, an individual would have to pay a minimum of £600 and possibly as much as £1,750 to get their case heard.
Some individuals will be able to claim a full remission for the fee. For a single person without children this will be the case if they have a gross annual income of £13,000 or less, which is around the minimum wage for a full-time job. For someone in a couple the means test will be based on joint income (an £18,000 cut off if they don’t have children, higher if they do) which seems particularly inappropriate for a woman trying to pursue a sex discrimination claim – surely, the assessment should be based on her own income rather than her partner’s too?
Given the complexity of discrimination cases and the likelihood of employers using solicitors or barristers to robustly defend any accusation of discrimination, legal representation for individuals has always been advised – and this will be even more so if individuals do not want to waste the large sums of money they will have to pay to get their case heard – but for non-union members the sources of legal support are shrinking.
Last year the Government pulled the plug on the Equality and Human Rights Commission’s legal grants programme, which has funded specialist discrimination law workers in Race Equality Councils, Law Centres and Citizen’s Advice Bureaux up and down the country, and just before Christmas it announced it would not be making available any alternative source of public funding for these services.
The EHRC itself, whose statutory duty is to promote and ensure compliance with discrimination law, is facing huge budget cuts (60% by 2014-15) and it has been stripped of its helpline function which has provided expert advice to around 40,000 individuals a year. We also await the Government’s response to its consultation to revise the legislative basis of the EHRC. In the TUC’s view, the proposals for reform that were put forward would result in a further weakening of our statutory equality and human rights body and threaten its political independence (as a consequence it could lose its current A* rating as a National Human Rights Institution from the UN).
Over nearly two decades we’ve seen our legal framework for equality advance in ways we could not have foreseen back in 1995. Now we face the challenge of maintaining progress and keeping employers, businesses and public bodies focused on the need to provide equal employment opportunities and equal access to goods and services and public functions while the stick we hold behind our backs is shrinking.