191.We saw in Chapter Two just how oppressive and difficult individuals can find the court system. The Ministry of Justice acknowledged that “many people will find the court and tribunals proceedings difficult, complex and daunting.” They put this down to the “nature of adversarial disputes and the challenge of enforcing one’s rights”. This is undoubtedly true and is one of the reasons the fundamental shift in the approach to enforcement of the Equality Act set out in this report is so badly needed. Nonetheless, the right to bring legal action to challenge discrimination remains vital and the difficulties faced by individuals can be reduced.
192.Individual enforcement will also remain an important part of any enforcement model. The Government has acknowledged that individual litigation can create precedents leading to wider change. It is also another means by which we create the ‘critical mass’ of discrimination cases needed to build a culture where compliance is the norm because employers, service providers and public authorities know they will face consequences for discrimination.
193.The most frequently cited barrier was the cost of bringing a claim. Bringing a discrimination claim can undoubtedly be expensive—the Equality and Human Rights Commission estimated their cost for funding an individual case as anywhere between £4,000 and £80,000. The average was £28,000. Such costs can include court fees (although no longer employment tribunal fees), fees for legal advice and more generally the cost of being involved in litigation. The fear of becoming liable for the costs of the other party was also a significant concern for many.
194.Legal aid is the most significant way that costs can be met for individuals seeking to enforce their rights under the Equality Act 2010. Civil legal aid generally falls into two categories: legal help, which encompasses initial advice and assistance, including help to correspond and negotiate with the other party and legal representation by a solicitor or a barrister. Legal representation is not available in the Employment Tribunal other than on appeal, meaning that individuals must either pay privately or represent themselves. Civil legal aid for discrimination claims is ‘means’ and ‘merits’ tested and is currently only available via a telephone gateway.
195.The EHRC has recently conducted a formal inquiry into access to legal aid for discrimination cases. It found that “recent years have seen access to justice restricted to such an extent that many people experiencing discrimination are not getting the help they need to seek redress.” Problems included very low numbers of referrals for face-to-face advice, due in part to a lack of legal aid providers able to provide such advice, and low numbers receiving support beyond telephone advice—such as casework or other forms of legal help; failures to make reasonable adjustments for those accessing telephone advice; and very low numbers receiving funding for representation in court—just 0.5% of discrimination cases. They also found problems with exceptional case funding, financial eligibility and more generally awareness of legal aid.
196.Concerns about the mandatory telephone gateway for civil legal aid have been well rehearsed, not just in evidence to this Committee but also by the Joint Committee on Human Rights and most recently by the findings of the Equality and Human Rights Commission’s formal inquiry. We were therefore pleased to hear that the Ministry of Justice plans to remove the mandatory requirement to access legal advice for discrimination cases through the telephone gateway by 2020.
197.We were also pleased to learn that the Ministry of Justice plans to launch a campaign to raise awareness of the availability of legal support, including legal aid, and to advertise its availability in autumn 2019. We heard evidence the Government had treated the existence of even the advice available via the telephone gateway as “almost [ … ] a state secret” and the awareness campaign will need to overcome this history to reach groups affected by discrimination.
198.Lastly, we were relieved to see the Ministry recognise that it needs to take a proactive approach to procuring expert advice on discrimination cases, to ensure that it is available in practice. Catherine Rayner told us that the last five to 10 years had seen “a massive reduction” in both legal aid and the funding for advice organisations dealing with discrimination issues. She told us that the area she lived in was “a legal help desert” with only two lawyers in the area doing discrimination work. Nick Whittingham, Chief Executive of Kirklees Citizens Advice and Law Centre told us that since the LASPO reforms were brought in they had lost all funding for discrimination claims and were either supporting such cases as part of broader issues where they had funding or were doing so pro bono, i.e. for free.
199.The Equality and Human Rights Commission has similarly welcomed such actions by the Government, but following its formal inquiry into legal aid in discrimination cases—published after the changes discussed above were announced—has stated that it remains concerned that “victims of discrimination are not getting the help they need to enforce their rights in the courts.”
200.The Ministry of Justice has committed to monitor take up of legal aid for discrimination cases and to assess the level of face to face provision once the planned round of procurement of specialist telephone advice and face to face contracts has been completed. This is to be welcomed but must also explicitly evaluate their effectiveness in securing legal aid for those facing discrimination in a way that genuinely improves access to justice.
201.We recommend that the Ministry of Justice monitor and evaluate the effectiveness of the removal of the mandatory requirement to access legal advice for discrimination cases through the telephone gateway, the planned legal aid awareness campaign and the procurement of specialist advice services in increasing the number of individuals being granted legal aid, including legal representation, for discrimination claims.
202.As explained above, eligibility for legal aid is subject to a ‘merits’ test. This includes a cost benefit test, the purpose of which is to ensure that legal aid is only awarded for cases where the “potential benefit to be gained from a case must justify its anticipated costs.”
203.The Equality and Human Rights Commission examined the impact of this criteria as applied to applications for legal representation—to cover the costs of representation by a solicitor or barrister—in discrimination claims and found that failing the cost benefit test was the most common reason for such claims to be rejected. They concluded that this was because many were being classified as ‘primarily a claim for damages’, which made it very difficult for discrimination claims to pass the test. This may be because they are not, in fact, primarily a claim for damages, but is also because the damages available for discrimination are so low. The EHRC report explains:
Taking our indicative average case cost of £28,000 and assuming that the claim has a good prospect of succeeding (meaning that likely damages must outweigh the likely costs by a ratio of two to one), the likely damages would need to exceed £56,000 in order for this cost benefit test to be met.
204.In discrimination claims the bulk of a claim for damages is likely to be injury to feelings, where the upper limit for an award is £44,000. The EHRC therefore concluded that “most discrimination cases (even those with a good prospect of success) would fail the relevant cost benefit test.”
205.We highlight this problem not only because of the barrier that it creates, but also because it is another example of the current enforcement system failing to recognise the importance to society of ensuring that the Equality Act is properly enforced. There are two other categories that discrimination claims could be considered under: the first is that a ‘reasonable private paying individual’ would fund it, and the second that the case is of significant wider public interest.
206.The Equality and Human Rights Commission has recommended that the Government amend the Lord Chancellor’s guidance for civil legal aid to “[r]ecognise the importance to the individual and to society of challenging discrimination, and advise that, as a general rule, a discrimination claim that seeks other remedies in addition to damages should not be assumed to be ‘primarily a claim for damages.” This is a sensible recommendation, but we do not think it goes far enough. If the necessary critical mass of cases is to be achieved, the starting point for the cost benefit test for civil legal aid should be a presumption that enabling discrimination cases to be brought is in the wider public interest.
207.We recommend that the Government amend the rules on application of the cost benefit test for civil legal aid to reflect the non-financial value, to the individual and to society, of enabling a discrimination claim to be brought. The rules should require the cost benefit assessment to start from an assumption that discrimination claims are not primarily claims for damages and are likely to be in the wider public interest.
208.Fixing access to legal aid will, of course, only benefit those who are eligible for it. Many will not be eligible but will still find the costs involved in bringing a discrimination claim, and the actual or perceived risk of becoming liable for the costs of the other party, to be a significant deterrent.
209.In employment tribunal claims each party will usually bear its own costs. Costs orders requiring the other side to pay a claimant’s cost, or for a claimant to pay those incurred by a defendant, will only be made where there has been ‘unreasonable conduct’. As highlighted in our report into non-disclosure agreements, such orders are rare. However, the rules in the county court are different. There is a higher risk of cost orders being made and, as Nick Whittingham explained:
When you are dealing with a big opponent—a Government Department or a large company—you know that the lawyers’ fees will be immense, enough to wipe out the cost of somebody’s home. It is a huge risk for somebody to take. What they might get from that is minimal in terms of compensation. [ … ] Where we had legal aid, legal aid gives the client cost protection. There is presumption that the client will not have to pay costs. Without legal aid, there is no protection
210.One solution to the risk of costs in the county court proposed by a number of witnesses was to extend ‘qualified one way costs shifting’ to discrimination claims—a proposal supported by the EHRC and recommended by the House of Lords Committee on the Equality Act and Disability. Louise Whitfield, an expert discrimination lawyer, explained that in the past claimants could use conditional fee agreements and insurance schemes to protect themselves from the risk of having to pay significant costs. However, “those arrangements were scrapped” and for personal injury claims replaced with ‘qualified one-way costs shifting’ (QOCS), a scheme that was not extended to cover discrimination claims. Ms Whitfield explains that this means:
if you have a personal injury claim and you lose, you only have to pay the winning party’s costs in very limited circumstances. But if you want to bring a discrimination claim, QOCS is not available, and if you lose you could find yourself liable for tens of thousands of pounds
211.Chris Fry, another expert discrimination lawyer, similarly argued for QOCS to be extended to discrimination claims. He felt that this would be relatively straightforward to do, requiring only a simple amendment to the Civil Procedure Rules, by Statutory Instrument. He even provided us with a draft of the necessary amendment:
amend the Civil Procedure Rules, by Statutory Instrument, by the insertion, after CPR 44.13(1)(c), of:
(d) under section 114 of the Equality Act 2010
213.We also heard that claimants in discrimination cases all too often felt forced into settling a claim because they fear that if they do not do so they will become liable for the costs of the other party. This fear applied in both employment tribunal claims and claims in the county court and appeared to be as much due to the tactics employed by defendants and their legal teams as to the rules of the court. Costs orders will only be made in employment discrimination cases where there has been “unreasonable behaviour”. Nonetheless, the law firm Leigh Day told us that should a tribunal claimant reject the offer of a confidential settlement and continue to pursue the claim “they may be threatened with significant adverse costs consequences” and that they were seeing “increasing costs/deposit orders made against claimants in pursuing race discrimination cases which are complicated cases to evidence”.
214.In our inquiry into non-disclosure agreements we expressed our concern that “fears about being pursued for employers’ legal costs may be driving individuals to agree to settlement terms such as confidentiality clauses that they do not want”. We recommended that the Government ensure that there is adequate guidance for tribunal judges and litigants on when a refusal to settle a claim may be considered “unreasonable”, including that refusal to agree to an NDA should never, in itself, be deemed unreasonable behaviour in this regard.
215.In this inquiry we heard these concerns repeated and extended to include county court claims where the threat of a costs order is more significant than in the employment tribunal. As outlined in Chapter Two, Esther Leighton told us that she had felt forced to settle before achieving the kind of systemic impact she wanted, at least in part due to the risk of being penalised with costs liabilities for refusing a settlement. She had been put under pressure to sign a non-disclosure agreement as part of such settlements, and while she had resisted so far was afraid that if she continued to do so and it went to court “the court will penalise me for not having accepted a reasonable offer.” As such she said that she would like “really clear guidance for the courts that says that refusing an NDA is an acceptable reason not to settle”. We agree.
216.We recommend that the Government work with the Courts and Tribunals Service to issue guidance to judges and the legal profession on when refusing to enter a settlement agreement or agree to a non-disclosure agreement will and will not constitute grounds for awarding costs in discrimination claims, with a strong presumption that such a refusal, on its own, will not lead to an award of costs against an individual.
217.One simple change that can enable individual litigation to achieve wider change is enabling people to access and learn from previous judgments. This is now done in employment tribunals, but not for county court judgments where there is also a lack of statistical data on claims. The Equality and Human Rights Commission told us that as a result there is no clear picture of how many Equality Act claims are brought in the county courts and it is more difficult to identify “repeat offenders” in relation to whom enforcement action by the Commission might be appropriate. Explaining this situation, the Ministry of Justice told us that some judgments are published online “for example on legal websites such as BAILII or in weekly law reports” but suggested that the “significant volume of business” in the county court was a barrier to more routine publication. They also felt that some judges “may prefer to provide an ex tempore judgment (which will not be published)”, with the caveat that “such proceedings are recorded, and a transcript can be produced if necessary”. We do not find this explanation adequate.
218.It cannot be beyond the ability of our courts system to be able to publish something as important to those involved as the judgment of their case. The Equality and Human Rights Commission is correct to argue that this would increase transparency and provide comprehensive, accessible information about discrimination cases in the county court.
220.As a committee we and our predecessor have repeatedly made recommendations for improvements to the remedies available for discrimination claims.
Box 6: Recommendations on remedies for discrimination claims made by the Women and Equalities Committee from 2010–July 2019
The Government must substantially increase the financial penalties for employers found by employment tribunals to have breached the law. Penalties should be set at such a level as to ensure that employees are not deterred from bringing claims, and to deter employers from breaching the legislation. (Report into high heels and workplace dress codes, jointly with the Petitions Committee)
The Government should improve the remedies that can be awarded by employment tribunals and the costs regime to reduce disincentives to taking a case forward. Tribunals should be able to award punitive damages and there should be a presumption that tribunals will normally require employers to pay employees’ costs if the employer loses a discrimination case in which sexual harassment has been alleged. (Report into sexual harassment in the workplace)
We support the EHRC’s recommendation that the Government should introduce a statutory code of practice on sexual harassment in support of the mandatory duty. This code would specify the steps that employers should take to prevent and respond to sexual harassment, and which can be considered in evidence when determining whether the duty has been breached. Tribunals should have the discretion to apply an uplift to compensation of up to 25 per cent in harassment claims where there has been a breach of mandatory elements of the statutory code. (Report into sexual harassment in the workplace)
A toxic organisational culture or poor management practices have the potential to make sexual harassment, along with other types of workplace discrimination, more prevalent. The ability of tribunals to make wider recommendations that draw on the lessons of individual cases to encourage a joined-up organisational response could have an important part to play in tackling these factors as part of a scheme of wider changes. The Government should consider reintroducing tribunals’ powers to make wider recommendations to employers in discrimination cases. (Report into sexual harassment in the workplace)
The Government should also make it quicker and easier for the claimant to resolve a legal problem with their dress code by allowing employment tribunals to award injunctions in these types of cases. (Report into high heels and workplace dress codes, jointly with the Petitions Committee)
We call again on the Government to urgently improve the remedies that can be awarded by employment tribunals as well as the costs regime to reduce disincentives to taking a case forward. Tribunals should be able to award punitive damages and there should be a presumption that tribunals will normally require employers to pay employees’ costs if the employer loses a discrimination case in which sexual harassment has been alleged. The bands in the Vento guidelines should be increased significantly to take into account the non-financial impact of discrimination. These changes should be made within the next two years. (Report into non-disclosure agreements in discrimination cases)
221.We have made these recommendations because the current remedies for discrimination tend to be focussed on remedying the ‘wrong’ suffered by the individual, most often through financial remedies. This pays insufficient regard to the social benefit of enforcing the Equality Act and unjustifiably limits the role that individual claims can play in achieving that benefit. The Government has explained its view that:
claims made under the Equality Act are brought by individuals and so the remedies—normally compensation, but sometimes also damages—therefore apply to the individual and are designed to provide the individual with restitution for the detriment they have suffered.
222.This is an accurate description of the current situation. Our evidence, in this and numerous past inquiries is that this situation needs to change. Throughout this report we have given examples of where individual enforcement, and individual remedies, were insufficient—from inaccessible websites and buses, to race discrimination in the armed forces.
223.There are two key areas where the most urgent improvement to the remedies available for breaches of the Equality Act is needed: the financial consequences of discrimination need to be such that they act as a significant deterrent and the courts and tribunals need the power to ensure that their judgments can achieve change beyond the individual case.
225.We recommend that the Government bring forward legislation to empower both employment tribunals and county courts to make remedial orders that require organisational change and to make wider recommendations where this can support change within the wider sector.
219 Ministry of Justice ()
220 Government Equalities Office (); (Baroness Williams)
221 See Chapter Three
222 See for example Ian Lawson (); Business Disability Forum (); Fry Law (); Gendered Intelligence (); Inclusion London (); Mind (); Mrs Angie Bennetton (); Women’s Budget Group (); Nathalie Abildgaard (); Sam Walker (); Vikki Barnard (); Birmingham and Black Country Sight Loss Councils ()
223 Equality and Human Rights Commission ()
224 See for example: (Karon Monaghan); Ms Louise Whitfield () Leigh Day & Co (); National Deaf Children’s Society (); Finola Kelly (); Nathalie Abildgaard ()
225 to the Women and Equalities Committee inquiry into the use of Non-Disclosure Agreements in discrimination cases
226 Equality and Human Rights Commission, 19 June 2019
227 Action on Hearing Loss (); Age UK (); Discrimination Law Association ()Equality and Diversity Forum ()Ms Louise Whitfield (); Inclusion London ()Scope ()
228 Joint Committee on Human Rights, Tenth Report of Session 2017–19, , HC 669 HL 171, Chapter Three ‘The damaging effects of legal aid reforms’
229 Equality and Human Rights Commission, 19 June 2019
230 Ministry of Justice, Post-Implementation Review of Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO), , February 2019
231 Ministry of Justice ()
232 Richard Miller
233 Ministry of Justice ()
243 Nathalie Abildgaard (); Sam Walker (); Vikki Barnard (); Business Disability Forum (); Birmingham and Black Country Sight Loss Councils ()
244 Leigh Day & Co (); National Deaf Children’s Society (); Finola Kelly (); Nathalie Abildgaard ()
245 Women and Equalities Committee, Ninth Report of Session 2017–19, The Use of Non-disclosure Agreements in Discrimination Cases, HC1720, para 59
247 See also: Esther Leighton (); Fry Law (); Inclusion London (); Ms Louise Whitfield (); Leigh Day & Co (); Doug Paulley ()
249 Ms Louise Whitfield ()
250 Ms Louise Whitfield ()
251 Fry Law ()
252 See, for example: Fry Law (); Finola Kelly (); Nathalie Abildgaard (); Catherine Casserley (); Jeffrey Harvey ()
253 Esther Leighton ();
254 Leigh Day & Co ()
255 Women and Equalities Committee, Ninth Report of Session 2017–19, The Use of Non-disclosure Agreements in Discrimination Cases, HC1720, para 60
256 Women and Equalities Committee, Ninth Report of Session 2017–19, The Use of Non-disclosure Agreements in Discrimination Cases, HC1720, para 60
257 Esther Leighton ()
258 Esther Leighton
259 Equality and Human Rights Commission ()
260 Ministry of Justice ()
262 Petitions Committee and Women and Equalities Committee, First Joint Report of Session 2016–17, , HC 291, para 85
263 Women and Equalities Committee, Fifth Report of Session 2017–19, , HC 725, para 85
264 Women and Equalities Committee, Fifth Report of Session 2017–19, , HC 725, para 68
265 Women and Equalities Committee, Fifth Report of Session 2017–19, , HC 725, para 105
266 Petitions Committee and Women and Equalities Committee, First Joint Report of Session 2016–17, , HC 291, para 86
267 Women and Equalities Committee, Ninth Report of Session 2017–19, The Use of Non-disclosure Agreements in Discrimination Cases, HC1720, para 67
268 Government Equalities Office ()
Published: 30 July 2019