Evidence submitted by the Discrimination
Law Association
| TABLE OF CONTENTS
|
| | The Discrimination Law Association
| Paragraph 1 |
| Subject matter of the submission
| Paragraph 2 |
| The Scope of discrimination law
| Paragraph 3 |
| Unlawful discrimination in the UK
| Paragraph 4 |
| Discrimination in employment
| Paragraph 11 |
| The importance of discrimination casework
| Paragraph 14 |
| The central importance of L S C in discrimination casework
| Paragraph 18 |
| Discrimination law as part of legal aid
| Paragraph 25 |
| The reduction in legal aid practitioners
| Paragraph 34 |
| The difficulties under the new L S C contracts
| Paragraph 38 |
| The limits of legal aid |
Paragraph 44 |
| Recommendations | Paragraph 46
|
| Conclusion | Paragraph 53
|
THE DISCRIMINATION
LAW ASSOCIATION
1. The Discrimination Law Association was founded in
1995. Its aims are:
— to promote and improve the giving of advice and
representation to individuals complaining of discrimination;
— to raise awareness and encourage debate on discrimination
law and practice;
— to promote teaching of discrimination law;
— to secure improvements in the scope and enforcement
of UK anti-discrimination legislation; and
— to share information and ideas internationally.
Currently it has about 400 members. Members are either individuals—lawyers
and experienced caseworkers, working in private practice or for
voluntary sector organisations such as national charities, law
centres and the like, employment tribunals chairs, academics etc—or
organisations such as CABs, local authorities, Trade Unions and
solicitor firms.
SUBJECT MATTER
OF THE
SUBMISSION
2. This submission concerns legally aided advice on discrimination
law only, mainly in employment law before the employment tribunals
but also in goods and services provision before the courts.
THE SCOPE
OF DISCRIMINATION
LAW
3. Discrimination in employment is now unlawful on grounds
of race (which includes national origin), gender, disability,
sexual orientation and religion. Age discrimination will be outlawed
by 2006. Discrimination in provision of goods and services is
currently unlawful on grounds of race, sex and disability.
UNLAWFUL DISCRIMINATION
IN THE
UK
4. For all the progress made since the first discrimination
statutes over 30 years ago, discrimination on unlawful grounds
remains a stubborn and serious problem. Signs saying "No
blacks, no Irish, no dogs" are long gone; racial discrimination
is not. To illustrate, according to the Runnymede Trust only 1%
of senior managers of FTSE Top 100 companies are from an ethnic
minority. A recent Cabinet Office report revealed that there was
an "ethnic penalty" in terms of earnings. A worker of
Black Caribbean origin earns £5,000 on average less a year
than a white counterpart doing the same job, in the same area
with the same qualifications. For a man of Pakistani origin the
"ethnic penalty" is £6,500 a year.
5. We have had equal pay legislation in this country
for over thirty years. Yet, according to the Equal Opportunities
Commission, on average women full time employees earn 18.8% less
an hour than full time men employees. There are still far fewer
women in positions of power and influence: women constitute just
7% of the senior judiciary, 7% of senior police officers, 9% of
national newspaper editors and 9% of top business leaders.
6. Discrimination on the grounds of disability is particularly
deep-rooted. According to the Disability Rights Commission, only
43% of disabled women and 50% of disabled men are employed. Disabled
people are also half as likely as the non-disabled to get qualifications
and half as likely to go to university.
7. For sexual orientation and religion there are fewer
statistics. These two strands lack a commission empowered to drive
forward progress on the issue and carry out research. However,
according to a 1999 TUC survey, 44% of lesbian and gay workers
reported that they had suffered discrimination at work because
of their sexuality. There is rising concern about the problem
of Islamaphobia. Far right organisations such as the BNP previously
focused on race are now openly campaigning on issues of religion
and claiming success.
8. Unlawful discrimination is not just a problem for
the individual victim, although individual suffering can be extreme;
even in cases not involving physical assault (including sexual
assault) tribunals have found victims to be suffering from, for
instance, severe depressive illnesses, suicidal thoughts, radical
changes of personality and to have lost several years from their
working lives.
9. Discrimination distorts and disfigures all our society.
It is not in our national economic interest if we fail to use
the potential of all members of our society. As a nation we are
missing out on the skills and abilities of too many of our people
through unlawful discrimination.
10. Such discrimination does appalling damage to community
relations if vulnerable minorities experience patterns of discrimination.
Entire communities can fail to be integrated into the wider society
with wide-reaching consequences. Enforceable discrimination law
is a highly effective gate-keeper against social exclusion and
all its consequences.
DISCRIMINATION IN
EMPLOYMENT
11. According to Time for Equality at work : The global
report under the Follow-up to the ILO Declaration on Fundamental
Principles and Rights at Work 2003, "work is a strategic
entry point from which to combat discrimination in society . .
. in the workplace . . . discrimination can be tackled more readily
and effectively. By physical ability and treating (workers) fairly,
the workplace helps to defuse prejudices and shows that social
life and activity free of discrimination is possible, effective
and desirable."
12. The report continues, "At its worst, the discrimination
that certain groups such as women or racial minorities face in
the labour market, makes them vulnerable to abuse. Discrimination
at work deprives people of their voice at work and full participation.
The elimination of discrimination at work is essential if the
values of human dignity and individual freedom, social justice
and social cohesion are to go beyond formal proclamation".
13. "The elimination of discrimination is essential
if all individuals, irrespective of their physical or cultural
traits and beliefs, are to be able to chose freely the direction
of their professional paths and working lives, to develop fully
their talents and capabilities and to be rewarded according to
merit."
THE IMPORTANCE
OF DISCRIMINATION
CASEWORK
14. Much has been achieved by campaigns, formal investigations
by the respective commissions and negotiation. However, regrettably
perhaps, it is at the sharp end of discrimination law—cases
in the courts and tribunals—where the impact is clearest.
There is an analogy with public attitudes to drink driving. Campaigns
against drink driving had too little impact. It was only when
Barbara Castle grasped the nettle and brought in the breathalyser
that drink driving went into sharp decline. Drivers stopped drinking
because they knew they risked being caught and punished. The follow-on
was a revolution in social attitudes to drink driving which drove
down the figures yet further.
15. The same pattern can be seen in discrimination law.
Much was spoken about sexual harassment. But it was only when
high profile cases were won, damages awarded and embarrassing
publicity endured that it became standard for major employers
to have effective sexual harassment policies.
16. A single (simple and small-scale) discrimination
case can have nation-wide benefits. For instance, the refusal
of one blind woman with a guide dog in one supermarket led to
a court case and to the supermarket chain bringing in nationwide
disability awareness training from the Royal National Institute
for the Blind.
17. A successful discrimination case attracts widespread
publicity; people remember it. Such a case only directly affects
a few people but it is like a stone thrown into the centre of
a pond : the stone only hits a small drop of water but the resulting
ripples go much wider.
THE CENTRAL
IMPORTANCE OF
THE LEGAL
SERVICES COMMISSION
IN DISCRIMINATION
CASEWORK
18. Widely accessible legal aid is vital if discrimination
law is to be effective. Many victims of discrimination are not
financially eligible; however, the nature of discrimination itself
means that vulnerable groups are likely to be disproportionately
financially eligible.
19. Other sources of funding for vital discrimination
caselaw are very limited. Discrimination, compared to other employment
law, is time-consuming and specialised : it is costly. There are
excellent private practice lawyers. However, cost deters the great
majority of complainants. A complex race case can last many days
at hearing and require over 60 hours of preparation.
20. Conditional Fee Agreements (No Win No Fee) are practicable
in only a minority of discrimination cases. The Three Commissions
(soon to be only one) readily admit that they are overloaded and
are searching for skilled practitioners to take on cases. Only
a minority of workers are now unionised. Unions do much valuable
discrimination work but they, too, are overloaded; they may suffer
from a conflict of interest in discrimination cases and are poorly
represented among many work sectors and vulnerable groups. Law
Centres are increasingly dependent on the LSC and are suffering
heavy funding cuts. CABx are also suffering funding cuts and do
not always have the necessary experience and facilities for complex
discrimination cases.
21. If discrimination law is to be about more than a
handful of women in the City earnings six figure sums (and for
the law to thus retain public respect), access to specialised
discrimination advice must be widened. It is unavoidable in employment
litigation that there is usually an inequality of arms between
worker and employer.
22. Particularly in discrimination cases, employment
tribunals have moved far away from the original idea of informal
forums where employers and workers can resolve their differences
quickly and cheaply. As the former Lord Chancellor Lord Irvine
told a previous Committee, the idea that workers can represent
themselves in all employment tribunal cases is no longer tenable.
Unrepresented applicants face ever-higher barriers in the tribunals,
both in preparation and hearing. As the court Civil Procedure
Rules are used, expert evidence is required more often, interlocutory
hearings become the norm and the legislation and caselaw pile
up, the scales of justice are weighed yet more heavily the unrepresented
party, more usually the worker. Statistics clearly show that represented
workers (particularly those with skilled representatives) achieve
better outcomes in their cases.
23. The law is ever more complex. For instance in the
vital field of indirect sex discrimination there have been three
separate and very different legal definitions of the law in four
years. Currently in indirect race discrimination, there are separate
definitions of the law depending on whether someone is claiming
discrimination on the grounds of race or of nationality and colour.
24. Emphasis in the past has been placed on representation
at the hearing only. However, in discrimination cases, this is
now out of date; skill and expertise are as important in preparation
as in advocacy. Discrimination cases are often won by detailed
and careful preparation—gathering of evidence from the employer,
persuading the tribunal to order the employer to provide vital
evidence, obtaining expert evidence on the damage to the worker's
health and well-being, pleading the case precisely. Extensive
knowledge and experience of tribunal procedure and discrimination
caselaw are necessary; errors in preparation too often disable
an otherwise strong case.
DISCRIMINATION LAW
AS PART
OF LEGAL
AID
25. Discrimination is only a tiny part of Legal Services
Commission budget so—understandably—it rarely gets
the attention of its more celebrated sisters, such as immigration
and family law. It is almost all employment law plus a few goods
and services cases.
26. The only legal aid available for employment work
is legal help; controlled legal representation does not apply
to employment tribunal representation (except for a very limited
discretion in a very limited number of cases). Thus practitioners
are paid for preparation work only; for representation clients
must rely on a not for profit agency's other funding (such as
a grant from the Association of Local Government in London), their
own pockets, a student representative, the occasional pro bono
or, more commonly, nothing.
27. The most thorough statistics are available for London
where, according to the most recent ACAS annual report, there
is a higher proportion of discrimination cases than anywhere else.
There is, currently at least, also a far higher proportion of
Legal Services Commission-funded employment advice. Statistics
from London are therefore sufficiently large to be of use.
28. In contrast, according to Snakes and Ladders—Advice
and Discrimination for Discrimination Cases in Wales (Department
of Social Science, University of Wales February 2003) there are
only three Legal Services Commission employment contracts in the
whole of Wales.
29. Legal help contracts in London are divided between
solicitor agencies with 87% of contracts and the Not For Profit
agencies with 13% of contracts. (The distinction between the two
in discrimination law is not entirely clear cut. Solicitor agencies
include some voluntary agencies whereas some not for profit agencies
employ lawyers.) Last year, in solicitor agencies there were 31
contracts for employment work, out of a total of 1,142 contracts
(2.7%). Among the much smaller not for profit sector there were
20 contracts out of 171 (11.7%). Therefore only 3.9% of Legal
Services Commission contracts are for employment law.
30. Out of 182,254 legal help cases done by Solicitor
agencies last year in London, only 1,397 were in employment (0.8%).
Out of 140,894 hours of legal help work done by Not For Profits,
only 10,507 (7.5%) were in employment. Thus it appears that the
small Not For Profit sector is more heavily involved in providing
employment law (and hence discrimination) advice than the large
private practice sector.
31. It is not known what percentage of this employment
law is discrimination law. However, there are numerous other employment
categories on which advice is given under the general heading
of "employment"—unfair dismissal, wrongful dismissal,
working time regulations, flexible working, holiday pay, minimum
wage, sick pay, health and safety, redundancy, deductions from
wages, restrictive covenants, references and the like.
32. If discrimination law is at risk of being overlooked
when considering the future of legal aid, there is a further disadvantage
of its small scale. There is no equivalent practitioner lobby
to compare with family or housing law to draw the attention of
the LSC, or other powerful and influential bodies, to trends and
issues in legal aid employment law.
33. The small scale of employment and discrimination
legal aid also leads unavoidably to very patchy geographical coverage
and thus "advice deserts". If there are far fewer contracts
in employment law, there will be areas where the service is not
available. Discrimination law in particular requires a "centres
of excellence" approach where expertise and experience can
be built up. It is certainly true that there is a higher need
for race and religion and sexual orientation discrimination in
areas with that particular demographic profile (usually large
cities) but this is not the case for sex and disability.
THE REDUCTION
IN LEGALLY
AIDED PRACTITIONERS
34. It is still too early to have extensive evidence
that the few existing practitioners are moving out of employment
work and particularly away from discrimination. However, one of
the most high profile human rights solicitor firms no longer undertakes
such work; others are shifting emphasis to private client work.
35. In the not for profit sector (by whom employment
law is disproportionately covered) there is evidence that law
centres are reducing the employment work done. All law centres
with a grant from the LSC have had their grants cut in their entirety;
historically, employment and discrimination work were particularly
dependent on these grants. Law centres with a national reputation
for their discrimination work have already closed departments.
Invaluable centres of excellence, especially necessary outside
London, have been are lost. Others are under very serious threat.
36. Practitioners (both in private practice and Not for
Profit) can rarely break even on the new LSC contracts doing discrimination
law. Discrimination law is subsidised from an organisation's other
funding. It must be questioned if private practice businesses
will be prepared to subsidise discrimination work out of their
private work, rather than concentrate on more profitable (or break-even)
sectors. The voluntary sector usually has no means of subsidy.
It is becoming ever harder to find charitable sources of funding
for casework, especially since the publicity surrounding the Community
Legal Service. Charitable trusts and other grant-making bodies
such as local authorities are understandably reluctant to make
grants to subsidise LSC casework.
37. The only other way to "square the circle"
in LSC discrimination work is to dramatically cut caseworker salaries.
This, however, is not a sustainable option. Most caseworkers (especially
in the not for profit sector) are paid already very significantly
less than their counterparts in large commercial firms. The current
problems with recruitment and retention of the necessary skilled
and experienced caseworkers will become a crisis if salaries are
dramatically cut. Recruitment will presumably have to be from
untrained and inexperienced (if enthusiastic and committed) generalist
advisors. They will be up against employers represented by highly
experienced, skilled and trained solicitors in large commercial
firms with extensive resources.
THE DIFFICULTIES
UNDER THE
NEW LSC CONTRACTS
38. Discrimination cases are disproportionately lengthy,
complex and expensive. However, Legal Services Commission time
guidelines are unrealistic and fail to recognise this. It is not
uncommon for a discrimination case to take over 60 hours work,
not including hearings (which will usually be multi-day and often
at least two if not more separate hearings—for which practitioners
are not paid at all). These cases are front-loaded ie much work
must be done at the beginning, especially to ascertain if the
case is of sufficient merit for public funding. It is particularly
dangerous to bring poor cases in discrimination law for fear of
creating bad law.
39. Discrimination clients themselves often require disproportionate
time from their advisor; there are higher proportions of discrimination
clients than the average who speak no English, who are suffering
from psychiatric injury or have learning or physical impairments.
Currently the Legal Services Commission do not appear to be making
sufficient allowance for this on audit. Unless this changes Legal
Services Commission-funded advisors will have no choice but to
avoid such clients.
40. A private practice solicitor must obtain a special
extension to do over 10 hours work including expert evidence.
This will often not even cover evidence-gathering and the initial
statutory questionnaire procedure. Extensions are not always obtainable
thus dramatically limiting the quality and effectiveness of discrimination
work. In many cases it is necessary to obtain expert evidence
from a medical expert such as a consultant psychiatrist.
41. Solicitors must work to an average case length. Therefore
once a solicitor has done a few very long and complex race cases,
there is no opportunity to do further discrimination work that
year. The current system effectively discriminates against discrimination
cases.
42. There have been no substantive audits of employment
work in the Not for Profit sector under the new LSC contract.
Therefore we do not know if the LSC auditors will accept the length
and complexity of discrimination cases. However, the sector is
very seriously concerned. If the LSC do not recognise the unique
nature of this work, discrimination files will be cut on audit
and, potentially, the whole organisation's contract will be reduced
to an unsustainable level. Therefore few organisations will be
prepared to do any discrimination work if it endangers their very
survival. Currently not for profit contractors are working "blind"
on discrimination work, unaware if they have a future and if their
work is putting their organisation at risk.
43. There is a further, entirely separate, requirement
of Legal Services Commission funding which undermines the effectiveness
of the discrimination acts. It is common in strong cases for the
employer to offer to settle out of court with a confidentiality
clause. The LSC, mindful of its duty to the public purse, requires
a worker to accept a reasonable whether or not there is a confidentiality
clause. Thus the employer—at a cost—protects their
reputation; the worker receives much needed compensation. However,
too often this simply allows the employer to buy the right to
discriminate. Too often the attitudes or practices which led to
the discrimination claim in the first place are unchanged. The
opportunity to change the minds (if not the hearts) of other employers
is lost. Public money has been spent to obtain deserved and necessary
compensation for an individual victim of discrimination; a chance
has been missed to combat the wider evil of discrimination in
society. Furthermore, confidential settlement compensation holds
down average compensation awards in the tribunals.
THE LIMITS
OF LEGAL
AID
44. Many workers are not eligible for Legal Help until
they are dismissed. Input of expert discrimination advice to those
still in work can solve discrimination problem in work or prevent
one from occurring. In the long term this saves public money on
Legal Help, employment tribunal time, state benefits and the consequent
costs of losing one's job.
45. This can be best illustrated by many cases of single
parents holding down a job whilst caring for their children. Their
employer wishes to make a relatively minor change to the worker's
conditions, such as starting half an hour earlier in the morning
without having consulted. However, this new start-time throws
out the parent's tight timetable of childcare and travelling and
they lose their job. The employer is often unaware that its actions
may constitute unlawful indirect sex discrimination. Input from
a discrimination specialist at this stage has many times resulted
in a compromise which saves the worker's job. The consequences
for a single parent family of the sole earner becoming unemployed
are particularly serious.
RECOMMENDATIONS
46. The Legal Services Commission should encourage specialist
legal aid practitioners to take up discrimination work which is
properly funded. There should be strict and specialist quality
criteria auditing.
47. Discrimination law should treated discretely within
employment law. It is not advisable to have a separate contract
category as this may cut the numbers of practitioners yet further.
There should be a rebutable presumption that a discrimination
case is of wider public interest in order to prevent workers being
forced to accept confidential settlements. Discrimination law
should be properly funded with adequate and realistic time guidance
and auditing. There should be adequate funding of expert reports.
48. Full allowance must be made for the difficulties
of taking instructions and giving advice to individual discrimination
clients for reasons such as disability or language. It should
be noted that disabled clients may have a claim for disability
discrimination against the advisor and Legal Services Commission
if they fail to make adjustments to their procedures to fit around
a disability.
49. There should be a full enquiry into the funding of
representation in the employment tribunal either by legal help,
controlled legal representation or some national or regional fund.
50. It must be recognised that, currently, the Not for
Profit sector is disproportionately represented in discrimination
law contracts. The sustainability of the Not for Profit sector
needs to be urgently addressed. The LSC pay only for casework
but not core funding. Thus the reduction of mainstream funding
has adversely affected this sector. Many Not For Profit agencies
have crises in funding infrastructure costs. Private practice
has at least the opportunity of funding core costs from private
work. Core funding of Not For Profit agencies by local authorities
is a postcode lottery and always subject to change. If the new
Legal Services Commission contracts and cuts lead to a reduction
in this sector, this will unavoidably lead to a significant cut
in discrimination work. According to Snakes and Ladders the Cardiff
and Swansea CABx are part funded by a Legal Services Commission
contract. They are experiencing problems in complying with the
current contract criteria so that the future of the service is
in doubt.
51. There is no evidence whatsoever that private practice
are prepared to pick up the contracts. Provision must urgently
be made for core funding of not for profit agencies to put them
in a position to do LSC casework.
52. The few existing Law Centre grants should not be
cut in April 2004. A national network of Law Centres should be
set up with a remit to cover all "advice deserts". It
should also be funded to provide employment and discrimination
advice to those in work to obtain more informal and less expensive
solutions. The network should be strictly audited for quality
of advice and efficiency of funding.
CONCLUSION
53. If current trends and policies are not changed now,
it is very likely that that specialist discrimination advice will
be significantly reduced. The effects of this will be serious.
Discrimination will not stop; with less fear of legal sanction
it is more likely to increase.
54. Discrimination cases will continue to be brought,
but without specialist legal advice, success rates will fall.
Poor cases, which are currently filtered out by LSC-funded discrimination
caseworkers, will be presented to the employment tribunal with
consequent waste for the tribunals and employers. Good cases will
fail. Victims will lack redress.
55. The media and politicians have, rightly, helped raise
victim's awareness of their rights and their expectations of justice.
Traditionally disadvantaged groups are far less likely to accept
their lot. As a society we are justly proud of this. We are also
proud of the protection against discrimination our laws offer
our citizens. However, passing laws and raising awareness whilst
removing access to justice is a recipe for bitter disillusionment
amongst disadvantaged groups.
56. Discrimination law is important. It must be adequately
funded. It should not be merely pages of legislation set out on
the page and unenforceable. Discrimination must make a appreciable
difference to the lives of individuals and communities.
Juliette Nash
Solicitor, Executive Committee member
January 2004
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