The Equality Act 2010: the impact on disabled people Contents

Chapter 9: Enforcement through the judicial process


376.As we have said, the Disability Discrimination Act 1995, and subsequent legislation, for the first time gave disabled people important new rights, now enshrined in the Equality Act. Such rights are of little value unless they can be enforced. Ultimately the tribunals and courts are there for the enforcement of these statutory rights and other legal rights. However “no party will want [to go to a county court] unless it is absolutely necessary: it is time-consuming, costs-consuming, emotion-consuming and will result in the delayed resolution of something that ordinarily ought to be resolved quickly, efficiently and with the minimum of public exposure.”589 This is particularly true for litigants in person, and all the more so for disabled litigants. For the Bar Council, Rachel Crasnow QC said:

“The way that equality rights, and in particular disability rights, have evolved up to today’s date makes them extremely complex even for lawyers to understand and work with them. For anyone to suggest that courts and tribunals are now places where you should be expected to cope and argue your case without specialist legal advice, is simply to deprive those would-be users of the Equality Act of the scope of those rights.”590

377.Barbara Cohen, speaking for the Discrimination Law Association, pointed out that “for claimants, individual litigation is not necessarily the best way to get good protection against discrimination.”591 We consider in the following chapter ways in which rights can be enforced while avoiding litigation. However where this is not possible, the first question is whether it is right, where there has been discrimination, for the burden of seeking redress to fall on the disabled person who has suffered discrimination; all the more so because, unlike most forms of litigation, proof of discrimination is in many cases likely to benefit other people in similar situations. This is the main reason why the State should do all it can to assist rather than obstruct the litigation process.

378.Three developments over the past three years have conspired to make such litigation more difficult: the imposition of tribunal fees, the reduction in the availability of legal aid, and procedural changes imposed under the Red Tape Challenge. We consider each of these, and look at other ways in which the enforcement of rights through the courts might be made less “time-consuming, costs-consuming, [and] emotion-consuming”.592

Tribunal fees

379.Fees for bringing claims in employment tribunals were introduced for the first time by the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013,593 which came into force on 29 July 2013. Most claims, including claims for unfair dismissal or discrimination, attract an issue fee of £250 and a hearing fee of £950, a total of £1,200.

380.HM Courts and Tribunals Service produces quarterly statistics which cover all tribunals, including employment tribunals. In the quarter April–June 2013, the last full quarter before fees became payable, 44,334 claims were accepted by employment tribunals; the equivalent figure for the quarter April–June 2014 was 8,533, a fall of over 80%. The figures for employment tribunals are broken down further by type of claim, and the chart below shows the number of disability discrimination claims accepted each quarter between October 2012 and September 2015.594 Disability discrimination claims form only a small proportion of the total, but the trend is the same, though not quite so marked: 1,619 claims were accepted in the quarter April–June 2013, and 828 a year later, a decrease of 49%.595

Figure 9: Disability discrimination claims received by employment tribunals

Line graph showing disabilty discrimination claims received by employment tribunals for each quarter in financial year 2009/10 up to Q2 in 2015/16

381.The Ministry of Justice, commenting on this in an earlier statistics bulletin, wrote: “The trend in single [employment tribunal] claims had been gradually declining for the last five years, but the rate of decline increased in October to December 2013. The fall in receipts for Employment Tribunals seen from October to December 2013 coincides with the introduction of Employment Tribunal fees in July 2013.”596 The Ministry did not go so far as to say that the introduction of fees caused the decline in claims, or even that it was a contributory factor, but it is inconceivable to us that it has not played a major part in the abrupt fall in the number of claims.

382.The trend for appeals is the same. On 24 November 2015 Sir Brian Langstaff, the President of the Employment Appeal Tribunal (EAT), said in written evidence to the Commons Justice Committee:

“Current caseload is approximately half of that which it was before the introduction of fees. Prior to fee introduction successive chronological years had shown a steady increase in the number of applications to appeal. Since, there has been the “cliff-face drop” shown above, almost immediately after the introduction of fees, and a further slow reduction in number … Our conclusion at the EAT from these figures is that if the introduction of fees is indeed the cause of the reduction in the number of applications to appeal, to the extent now of just over 50%, then first, for every one successful appeal that is now brought there would have been two had fees not been introduced—“good” appeals are being deterred; and second, there is now empirical evidence that fees have had no effect in deterring “bad” or “opportunistic” applications to appeal, as had been suggested in some quarters.”597

383.If his claim succeeds, normally the appellant should get the tribunal fees and witness expenses back from the losing respondent. Provision for remission of fees also means that an applicant on benefits may not have to pay the fees at all. The Bar Council pointed out:

“The Court of Appeal has commented that “ … the class of claimant for whom the fees are said to be realistically unaffordable are not those on the lowest incomes, who will be entitled to full remission, but those whose incomes are such that they are entitled only to partial remission or are above the level at which remission ceases to be available”.598 Clearly a claimant whose claim may be relatively small, and who will probably have to represent themselves, is bound to think very carefully before risking £1,200 of their own money in order to follow up an alleged breach of an Equality Act right.”599

384.The Bar Council also drew our attention to “the deep concern over this issue felt by the members of the specialist Bar Association, the Employment Law Bar Association (ELBA), who wrote to the Lord Chancellor and other MPs about fees on 16 March 2015. The ELBA fees letter was signed by 40 QCs and a little under 400 junior barristers who specialise in employment law.”600 These points were repeated subsequently in oral evidence. The Law Society told us: “More subtly—while we have no quantitative evidence for this—employment lawyers tell us that they are seeing employers who are “less careful” of the rights of employees (including those with disability) than they were prior to the introduction of fees. These employers correctly assess the risk of a claim as significantly reduced and behave accordingly.”601 Witnesses for the Bar Council, the Law Society, the Discrimination Law Association and the Law Centres Network all repeated their concerns in oral evidence.602

385.The judgment of the Court of Appeal from which we quote in paragraph 383 was an appeal by UNISON in its two attempts to challenge the introduction of tribunal fees by judicial review. They were unsuccessful at first instance and in the Court of Appeal. The appeal was dismissed on the ground that the fees could not yet be shown to be preventing people from pursuing claims or appeals and the Fee Order was therefore lawful. The Court said that it would be a strong thing to strike down legislation on the basis of disputed predictions of its effect, but implied that if the adverse predictions proved to be justified, a fresh attempt might be made to strike down the Order, perhaps with a different result. On 26 February 2016 the Supreme Court granted UNISON leave to appeal.

386.We recommend that HM Courts and Tribunals Service be required to collect from all county courts and from the Employment Appeal Tribunal, and to make publicly available, data relating to disability discrimination claims separately from other claims, as they do in employment tribunals.

387.The Scottish Government has consulted on the removal of employment tribunal fees in Scotland, and on 1 September 2015 it announced that it will abolish those fees as part of the transfer of tribunals in Scotland to the Scottish Courts and Tribunals Service under the Scotland Bill.

388.On 11 June 2015 the Lord Chancellor announced a post-implementation review which would “consider how effective the introduction of fees has been in meeting the original financial and behavioural objectives while maintaining access to justice”.603 The fees are also the subject of an ongoing inquiry by the Commons Justice Committee. Without wishing to pre-empt their conclusions [CHECK against progress of inquiry in March], we ourselves have no doubt that the introduction of tribunal fees has had a significant negative impact on the ability of disabled people to access justice.

389.We recommend that the Ministry of Justice, in its ongoing review of fees, act on the strong evidence that tribunal fees are unfairly obstructing discrimination claims under the Equality Act.

The deterrent effect of costs

390.The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) came into force on 1 April 2013 and made severe cuts in the funding and availability of both criminal and civil legal aid. Prior to the entry into force of the Act, legal help was available in employment tribunals, e.g. for drafting documents, but legal aid for representation was not. It was however available in the Employment Appeal Tribunal and above. LASPO removed legal help from employment law altogether, but kept it for discrimination cases under the Equality Act. In consultation prior to the introduction of the Bill for LASPO the EHRC referred to “the chilling effect on access to justice for workplace-based discrimination cases, were employment law to be removed from the scope of legal aid”604—as it then was.

391.Discrimination law in non-employment cases remains within the scope of legal aid. However, following the implementation of the LASPO reforms, most discrimination claimants are required to use the Community Legal Advice (CLA) Telephone Gateway service, operated by the Legal Aid Agency, as the first point of access for advice. Cases that pass the initial screening stage may be referred to one of three contracted specialist providers who can provide up to two hours’ remote advice. Claimants can only obtain face-to-face advice if the specialist provider considers that they cannot be advised over the telephone or by email. The EHRC commented on the potential barriers presented by the gateway, particularly for disabled clients, including those with poorer mental health, or cognitive or learning impairments.605 Mind referred to low levels of awareness of the gateway and issues with accessibility.606 Issues with accessibility were also raised by the National Deaf Children’s Society and Sheffield Citizens’ Advice Law Centre. Other witnesses were also very critical of the telephone gateway as a means for disabled people to obtain advice.607

392.In 2014 the Commons Justice Committee carried out an inquiry into the effects of the Act. In written evidence the Law Centres Network stated that in the first year since the implementation of LASPO, nine Law Centres had closed, comprising a sixth of their membership (although one had since reopened and another had been newly established). The closures resulted from loss of legal aid funding combined with loss of funding from local authorities. The remaining Law Centres had seen a sharp increase in demand for services.608

393.Jeanine Blamires told us of her experiences trying to obtain legal advice:

“We live in an area where accessible advocacy is hard to obtain. We have attempted to get help from Mencap, Disability Rights, the Equality Advisory and Support Service, Liberty and many others. Complex cases are not being put through because the money is not there to support organisations to take them on. Complex cases are being ignored by the Legal Aid Agency; they are too expensive.”609

394.Douglas Johnson, from the Law Centres network, said: “There are precious few firms of solicitors in the country that will go anywhere near a discrimination case. That is why the [Equality] Act is not being enforced. It is simply not cost effective for most firms of solicitors to take that risk from a business sense.”610 Neil Crowther’s conclusion was: “The big gap people identify is the question of remedy: the cost of going to employment tribunals … If there is one thing that would make a difference, it is to either eliminate or significantly reduce those costs and make access to remedy far easier.”611

Qualified one-way costs shifting (QOCS)

395.With the exception of the Government, our witnesses were unanimous about the deterrent effect of the reduction in legal aid funding. One partial remedy which some of them proposed was an amendment to the Civil Procedure Rules (CPR).

396.Previously, where a claimant was not financially eligible for legal aid funding, disability discrimination claims could be funded through a Conditional Fee Agreement (CFA) with After-the-Event insurance (ATE). This effectively meant that, if the claim was successful, the defendant would pay the claimant’s costs including the ATE premium; while if the claim was unsuccessful, the claimant would have to pay his or her own costs but was insured against paying the defendant’s costs. However one consequence of LASPO is that ATE premiums are no longer recoverable from the defendant even if a claim is successful. Claimants are now responsible for paying the ATE premium out of any compensation they have been awarded, and these premiums can amount to thousands of pounds, and can dwarf the compensation awarded. The Discrimination Law Association said: “The fact that [these] premiums are now not recoverable from the defendant (and that these premiums are often likely to be a sizeable proportion or all of the value of an injury to feelings award) means that the costs of bringing a claim are almost always prohibitive.”612

397.The abolition of the recoverability of ATE was one of the recommendations in Lord Justice Jackson’s 2009 Review of Civil Litigation Costs. To address this problem, he recommended the introduction of Qualified One Way Costs Shifting (QOCS), meaning that if a claim is unsuccessful, the claimant is protected against paying the defendant’s costs despite not having ATE. He recommended that this should apply to personal injury claims. He added:

“The question then arises as to which categories of litigant should benefit from qualified one way costs shifting. This is a question upon which further consultation will be required … In my view qualified one way costs shifting may be appropriate on grounds of social policy, where the parties are in an asymmetric relationship.”613

398.However Lord Justice Jackson’s recommendation was confined to personal injury claims, and so were the amendments to the Civil Procedure Rules which came into force on 1 April 2013.614 The new CPR rule 44.13(1) provides:

This Section applies to proceedings which include a claim for damages–(a) for personal injuries; (b) under the Fatal Accidents Act 1976; or (c) which arises out of death or personal injury and survives for the benefit of an estate by virtue of section 1(1) of the Law Reform (Miscellaneous Provisions) Act 1934.

399.The Law Centres Network believe QOCS may already apply to discrimination claims.615 Louise Whitfield sought “confirmation that the QOCS regime applies to disability discrimination cases”.616 A number of other witnesses thought that QOCS might already apply to discrimination claims, but believed there was uncertainty and sought confirmation.617

400.However the EHRC stated firmly that discrimination claims do not benefit from QOCS. We believe that at best, the application of QOCS to discrimination claims must be very doubtful. In CPR rule 44.13(1), claims for personal injuries are in the same category as claims under the Fatal Accidents Act. Moreover CPR rule 2(3), the general interpretation rule, includes this definition: “ ‘claim for personal injuries’ means proceedings in which there is a claim for damages in respect of personal injuries to the claimant or any other person or in respect of a person’s death, and ‘personal injuries’ includes any disease and any impairment of a person’s physical or mental condition.”

401.There would however be no difficulty about applying QOCS to discrimination claims. Unity Law point out that this could be achieved simply by adding to CPR rule 44.13 (1): “(d) under section 114 of the Equality Act 2010”.618 This could be done when the CPR are next amended; amendments are made several times each year.

402.The Civil Procedure Rules should be amended to apply Qualified One-Way Costs Shifting to discrimination claims under the Equality Act.

The statutory questionnaire

403.We turn to two provisions of the Equality Act which have been casualties under the Government’s Red Tape Challenge. Section 138 of the Act continued a provision for a questionnaire procedure that had been in the Sex Discrimination Act, the Race Relations Act and the Disability Discrimination Act. Under the procedure a potential claimant could serve a list of questions on a potential defendant, where they believed the defendant had contravened the Act or breached an equality duty. The questions could be used to obtain documents, statistical data, information on normal practice in a particular situation, and a pre-claim explanation for any adverse treatment, with sanctions for failures to respond or for equivocal or unsatisfactory answers. Replies were admissible in evidence in subsequent proceedings.

404.The intention, and the consequence, was that where, after a reply had been received, a claimant began court or tribunal proceedings, the issues would have been simplified and the litigation would perhaps be shorter and less costly. Where no proceedings followed, arguably this was because the issues had been settled to the satisfaction of the potential claimant. In their written evidence the TUC gave us an example.619

Box 14: The statutory questionnaire procedure

A member with learning difficulties with long service at a major supermarket was dismissed from her checkout role on performance grounds without any consideration of reasonable adjustments. The union assisted the member in drafting a questionnaire and as soon as it was received by the employer, the employer’s solicitors contacted the union and the case was settled. Without the questionnaire such an early settlement would not have been possible and additional costs would have been incurred by all parties and the tribunal service.

405.It was argued by the Government that the procedure was sometimes abused, and that employers were often asked for detailed information even if there was no intention to begin proceedings. As part of the Red Tape Challenge the questionnaire procedure was repealed by section 66 of the Enterprise and Regulatory Reform Act 2013. The Secretary of State told us that this change was made because “by 2009, it was estimated that nearly 10,000 businesses a year were having to respond to these questions at a cost of about £1.4 million per annum.”620

406.While it is still possible for claimants to send questionnaires to potential defendants in advance of starting proceedings, the repeal of section 138 means that there is no longer any obligation on a potential defendant to reply within a particular time, or at all, and no adverse inference can be drawn from a failure to reply or a late reply.

407.The Discrimination Law Association, Disability Law Service, the Law Society, Mind and the TUC all argued against the repeal.621 Barbara Cohen, giving evidence for the Discrimination Law Association, told the Committee that: “Sometimes [the people who are sent the questionnaire] come back and explain that what they did is not discrimination; you do not take it any further and that is the end of it. So in fact it helps to make sure that only the better claims go forward.”622 Douglas Johnson agreed, suggesting that the repeal of the procedure had inadvertently made the process of litigation more expensive:

“[The repeal] does increase the costs of litigation when it goes ahead because the effect of the questionnaire procedure was to bring in at an earlier stage the provisions of disclosure of documents. … [the repeal] delays that process until later on, at which point all parties tend to have lawyers involved, and things become much more costly, much more contested and much more formal. It actually makes the whole process of litigation much more—and unnecessarily—expensive.”623

408.In oral evidence, Dr Peter Purton, the Policy Officer for Disability and LGBT Rights at the TUC, told us how much they would welcome the reintroduction of the questionnaire procedure.624 That was not unexpected. What was more surprising was that none of the three witnesses who saw things from an employer’s perspective seemed to have been unduly concerned by the procedure. George Selvanera from the Business Disability Forum said: “Whether it is a questionnaire procedure or similar, they are mechanisms that take some of the emotion out of what is invariably a very sensitive and fraught process … There is value to having those sorts of processes in place.”625 The view of Mark McLane, Head of Global Diversity and Inclusion at Barclays Bank, was that “The work we are doing is to make certain that there are multiple avenues to bring forward a concern long before we would have to go into a questionnaire or a legal proceeding.”626 The witness who had the greatest reservations was James Lowman, from the Association of Convenience Stores, who told us: “Our members, especially smaller businesses without that head office HR function, can struggle and be intimidated by a questionnaire process that can take time”. But he added: “We do not take a strong view on whether the questionnaire should be there or not, but that is the flavour of some of the practical issues for smaller businesses.”627

409.The Government’s Red Tape Challenge consultation found that some 77% of respondents favoured maintaining the statutory questionnaire procedure, but added: “the consultation did not reveal any empirical evidence to support these views.”628 We note, although the Government did not, that no empirical evidence was cited from businesses who wished to see section 138 repealed. Moreover the impact assessment accompanying the decision to repeal this provision made no attempt to assess the burden that would be placed on disabled people, or the number of proceedings which might never have been commenced if the claimant had had the information which the questionnaire would have provided. A fuller consultation might have persuaded the Government that the repeal would in fact benefit business very little, if at all, but would significantly harm a group of people already at a considerable disadvantage.

410.The Government should reinstate the statutory questionnaire procedure.

Tribunals’ powers to make wider recommendations

411.The second victim of the Government’s Red Tape Challenge was the provision giving tribunals the power to make recommendations to a respondent who had lost a discrimination claim. Previously these had been limited to recommendations directed at reducing the adverse effect of an act of discrimination on the complainant. The Act broadened this, enabling tribunals to make recommendations impacting on all of an employer’s staff—such as that an employer update their policies to take account of the Equality Act, or that relevant staff undertake diversity training. Such recommendations might further the Government’s policy of increasing the employment of disabled people.

412.This measure came into force on 1 October 2010, but was repealed with effect from 1 October 2015 by section 2 of the Deregulation Act 2015 as part of the Government’s wider programme of deregulation. The Post-Legislative Memorandum on the Equality Act explains that:

“Following the Red Tape Challenge on Equalities, the Coalition Government concluded that this power was unnecessary and unenforceable. It took the view that employers who lose a discrimination case often take such actions themselves in the interest of avoiding similar cases being brought against them in the future and those employers who are unlikely to take such remedial action are also unlikely to adhere to a wider recommendation. Furthermore, as the power did not include legislative sanctions, the tribunals could not enforce their suggested recommendations.”629

413.In support of this, the Secretary of State told us: “When the Government Equalities Office wrote to employers who had received a wider recommendation from tribunals, those that replied indicated an average compliance cost of about £2,000.”630 We do not know how many had been asked, or what proportion replied.

414.The repeal of the power was cited with regret by Action on Hearing Loss, the Association of Colleges, the Disability Law Service, the Equality and Human Rights Commission, Law Centres Network, the Law Society, National AIDS Trust, Sense and the TUC.631 All argued that repeal of the power had damaged the ability of tribunals to have a longer-term impact on the extent of discrimination in society. The TUC argued:

“One of the criticisms of the power made by the Coalition Government was that any recommendations made lacked force. This was a criticism the TUC made when the power was first proposed in [Equality Act] 2010 and could have been remedied by introducing stronger enforcement mechanisms for recommendations rather than repealing the power altogether.”632

415.We agree that a more useful amendment to the law would have been to make such recommendations enforceable, rather than repeal the power to make them. A recommendation relating to the complainant can be enforced by making or increasing a compensation payment. An increase in the claimant’s compensation payment as a sanction for a failure to implement recommendations relating to others might have the required effect, though it might also constitute an undeserved bonus for the complainant.

416.We recommend that the Government restore the power of tribunals to make wider recommendations with a view to preventing discrimination experienced by the claimant from happening to others.

Remedies in the courts

417.Despite the fees, despite the costs, despite the complexity of the statutory provisions and the case-law, despite the complication of tribunal and—even more—court procedure, it is still possible for disabled people to bring cases on their own and, often, to win. We took oral evidence from two disabled people who have done just that.633

418.Doug Paulley is a wheelchair user living in a care home for people with physical impairments, and has both direct and vicarious experience of the barriers disabled people face when attempting to enjoy the same opportunities and experiences as non-disabled people. He has instituted over 40 cases for disability discrimination in the provision of services under the Equality Act. All but three of these were as a litigant in person. Most have been settled by consent either pre-issue or pre-judgment, but a number have gone to judgment.

419.Mr Paulley is currently engaged in litigation against FirstGroup, a bus company, about access by wheelchair users to the space set aside for them on buses. This is a case which has attracted a great deal of interest. Mr Paulley won in the county court, but the company’s appeal to the Court of Appeal was successful. The case is currently on appeal to the Supreme Court, so we say no more about it.

420.Jonathan Fogerty is a tetraplegic following a spinal cord injury in 1988 when he was 14 years old. He has paralysis from the chest down and no lower limb function. He qualified as a solicitor in 1999 and has practised in personal injury compensation cases since qualifying. He has taken four cases through the Small Claims Court alleging discrimination on the grounds of disability where a service provider has failed to make a reasonable adjustment and not provided wheelchair access. He told us that he has also pursued complaints by way of written correspondence with a service provider, a number of which have resulted in an out of court settlement.

421.For everyone, but particularly for people like these, HM Courts and Tribunals Service should live up to its name as a service provider. Mr Paulley told us: “I have sued the Court Service three times for disability discrimination, reaching binding out-of-court agreements in two cases and winning the third. In every case, court staff were unaware of their obligations as a service provider. Court employees’ reactions when I have requested an adjustment or aid gives me the impression that the Court Service has very few disabled service users.”634 This is highly regrettable, but we were glad to hear that it is not always the case. Jeanine Blamires told us that the county courts “are the best example I have of a service that is prepared to bend over backwards to ensure reasonable adjustments are in place to enable equal access to the court. With the help of the Personal Support Unit I provided them with a letter of my needs in court and they provide them.”635 And in supplementary evidence she and her husband David wrote: “Attitude makes a big difference, court staff at Skipton County Court, Bradford Magistrates Court and Leeds Combined Court are extremely helpful and considerate and have done everything in their power to enable good access.”636 We congratulate the staff of those courts, and hope that all court staff will model their conduct on this.

Injunctive relief

422.Damages alone are often not enough; the cause of the discrimination needs to be addressed. An example is the case of Allen v Royal Bank of Scotland Group Plc. The claimant was a wheelchair user and was unable to access the main branch of his bank in Sheffield. This would have been possible if a platform lift had been installed but the bank declined to do so, not directly on grounds of cost, but because the space required would have resulted in the loss of an interview room. The judge in the county court637 awarded the claimant £6,500 for injury to feelings. This alone would however still have left him unable to access the banking facilities he needed. The judge further ordered the bank to install a platform lift within nine months.

423.The ability of county courts to issue injunctions is a powerful tool. Sadly, it appears to be little known among disabled people, and sometimes their legal representatives.638 Mr Fogerty told us of litigation against a restaurant which was inaccessible to him. He was awarded damages, but he did not ask the court to grant an injunction, and “the restaurant remains as inaccessible today as it was two years ago.”639 He regretted not having applied for an injunction. We believe documents issued by the courts and others relating to discrimination litigation need to give more prominence to the ability of the courts to grant injunctions in appropriate cases. Such documents will however need to stress that, particularly in cases concerning physical barriers, this will require expert evidence and likely allocation to the fast or multi track of the court. Such applications will not be easy without legal representation.

Intervention by the EHRC

424.The EHRC has wide powers of enforcement, which include the power to institute or intervene in legal proceedings (including judicial review)640 and the power to assist an individual who is or may become party to legal proceedings with advice and costs.641 Its use of these powers was criticised by, among others, the Discrimination Law Association, in particular for not doing more to assist individual litigants, and for not intervening more in first instance cases.642 Rachel Crasnow QC, speaking for the Bar Council, made the same point: “By only stepping in at a late stage in the proceedings, sometimes a lot has been lost because arguments have not been explored when fact findings have taken place in important cases lower down.”643

425.We put these criticisms to the EHRC. In their response, they argued that “supporting an appellate case may make a better use of limited public resources”. They explained:

“Supporting a first instance case generally requires considerably more funding or resource than an appellate case. This is because the facts and credibility of the witnesses have yet to be determined by the court. An employment discrimination complaint is frequently listed by the Employment Tribunal for a hearing of between 10 and 15 days. Moreover, at appellate level, the Commission will recover its costs if successful, whereas it will often recover no costs for first instance cases. The Commission is therefore able to stretch its budget to more appellate than first instance cases. Even if successful, a first instance case does not result in a binding legal precedent.”644

426.Additionally, they pointed out that between 80% and 90% of first instance cases settle, and since most respondents demand a confidentiality clause in the settlement agreement, “the substantial legal resources deployed in reaching a settlement frequently amount to months of work and do not provide any public benefit.”645

427.We believe these are valid points, and are content that the EHRC, faced with limited resources, should decide where they are best employed.

Class actions

428.Plainly, one way of relieving the burden on individual litigants is for them to be able to join with others with similar legal interests in a single action, possibly assisted by an organisation supporting their interests. This, as the Discrimination Law Association and the Law Centres Network pointed out to us, is something they can already do:

“The [Employment Tribunal] jurisdiction allows for group actions and this has been used in equal pay litigation. This is still dependent upon each and every claimant filing a valid claim to the ET, and the ET determining each one, although it does enable representative litigation, where points common to all cases are identified and litigated. In the County Court a group action, similarly requiring every claimant to file a separate claim, is possible by way of a Group Litigation Order under CPR 19.11. In our experience this rarely occurs, given that it is so difficult to bring an individual case, never mind a group claim.”646

429.Representational groups can bring judicial review proceedings in matters in which those they represent have an interest, even though the decision being reviewed may not impact on an individual. They can also intervene in judicial review proceedings, though they will have to be mindful of the provisions of section 87 of the Criminal Justice and Courts Act 2015 which, from 13 April 2015,647 prohibit the court from ordering an applicant or defendant to pay the intervener’s costs (save in exceptional circumstances), and may require the court to order the intervener to pay the costs of another party where the intervener has acted, in substance, as the sole or principal applicant, defendant, appellant or respondent, or where the interventions have not been relevant or not been of assistance to the court.

430.But in contrast to judicial review, representational groups cannot pursue claims in similar circumstances, and a number of organisations would like to be able to do so. The RNIB said in their written evidence: “It would also be helpful for disability organisations to be able to pursue claims that affect their constituents as a class”648, and in oral evidence Fazilet Hadi said: “If the RNIB knew that 90 blind people were prejudiced by some new shared space scheme somewhere, we could not step in.”649 The Manchester Disabled Peoples Action Group thought that “An important addition … would be to enable groups, not just individuals, to take legal action against service providers and public bodies which are in breach of recognised national standards and guidance, and for groups to act as advocates for individuals who are not confident in making complaints or taking cases to courts on their own.”650

431.The Discrimination Law Association pointed out that a class action, in the sense that it is used in America, is not possible in our courts for discrimination claims.651 They added: “The DLA and the [Law Centres Network] do not currently have a view on whether or not the introduction of some form of class action process for litigation would be of benefit in discrimination cases or not … the present rules allow individuals with the same or essentially the same interest or concern to bring action as a group in any event (see the provisions for multi-party actions in the ET as used in much equal pay litigation for example).”652

432.We referred in Chapter 2 (paragraphs 87–92) to the draft EU Directive on the accessibility requirements for products and services, published by the Commission on 2 December 2015. Article 25 would require Member States to have in place what is essentially a class action enforcement procedure.

Box 15: Draft EU Accessibility Directive, Article 25

1.Member States shall ensure that adequate and effective means exist to ensure compliance with this Directive.

2.The means referred to paragraph 1 shall include … (b) provisions whereby public bodies or private associations, organisations or other legal entities which have a legitimate interest, in ensuring that the provisions of this Directive are complied with, may take action under national law before the courts or before the competent administrative bodies on behalf of consumers to ensure that the national provisions transposing this Directive are complied with.

433.There is no guarantee that this provision will survive the negotiating process in that form or at all; and, if it does, it may be thought that judicial review is an “adequate and effective means” of ensuring compliance with the Directive. We believe however that the Government should give serious consideration to allowing some form of class action in discrimination cases.

434.The Government should consider changing the law to allow charities and other bodies which do not themselves have a legal interest to bring proceedings in the interests of classes of disabled people who are not themselves claimants. This would enable them to remedy action already taken by a public authority or to prevent anticipated action.

Dual discrimination

435.Many disabled people have other protected characteristics, and discrimination may be based on two or more such characteristics. We referred in Chapter 2 to the Government’s failure to bring into force section 14 of the Act, which would allow a person discriminated against because of a combination of protected characteristics to prove this without having to show that the conduct complained of amounted to direct discrimination because of each of the characteristics taken separately.

436.Many witnesses, including the DLA, the EHRC and the Law Society, argued that section 14 should be brought into force.653 Only the Government thought otherwise, stating in paragraph 3.42 of its Memorandum on the Act that there is “insufficient evidence that [section 14] was needed and concerns that it represented an unnecessary burden to business since the current legislation already provides sufficient protection for individuals. Individuals can submit two or indeed multiple claims, each involving a different protected characteristic, in relation to the same alleged incident.”

437.We asked why it was more of a burden to businesses to defend one claim relating to two characteristics, rather than two claims each relating to one characteristic, when they arise out of the same incident. The Government replied: “It will be more of a burden because individuals will tend to bring the dual discrimination claim in addition to both single-strand claims, so there will be three claims rather than two. There is nothing in the Act to prevent this happening, and tribunal fees apply per claim,654 irrespective of how many grounds that claim is made on, so there would be a clear incentive to expand a claim in this way.”655

438.We do not accept this argument. It is precisely because “single-strand claims” on two individual grounds might fail that the Act allows a claim for dual discrimination to be brought—or would do if section 14 was in force.

439.Section 14 of the Act on dual discrimination should be brought into force forthwith.

The fact or degree of disability

440.The Equality Act 2010 broadened the definition of disability with the intention of making it easier for an individual to demonstrate that they meet the definition of disability. We are therefore concerned to receive evidence that disabled people are being challenged to ‘prove’ their disability before they are able to put forward evidence of discriminatory treatment, even though the fact of their disability is not open to question. Andrew Brenton told us:

“The other thing that happened to me was their main line of defence was, “You are not disabled”. Despite providing them with a lot of evidence, the university taking money to provide services for my disability—I had a disabled students’ allowance, a disabled students’ needs statement, at the time I was in receipt of disability living allowance at medium rate care and full rate mobility—their first line of defence was, “You’re not disabled. You’ve got to prove you’re disabled”. It adds a further layer of harm.”656

441.A court, when deciding what costs order to make, has a discretion under CPR rule 44.2(5)(b) to take into account “whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue”. If the defendant raises as a defence the fact or degree of the claimant’s disability, and the disability is proved to the satisfaction of the court, we hope that in appropriate cases claimants will invite the court to make use of this power.

442.Similarly, employment tribunals have the power to award costs when a party has acted vexatiously, abusively, disruptively or otherwise unreasonably either in bringing the proceedings or in the way that the proceedings have been conducted.657 We hope that in appropriate cases claimants will invite the tribunal to make use of this power.

Reforms of the civil courts

443.In July 2015 the Lord Chief Justice and the Master of the Rolls commissioned Lord Justice Briggs to carry out a review of the structure of the civil courts. The Civil Courts Structure Review: Interim Report was published on 12 January 2016. It is not therefore a matter on which we have received any evidence, but there are two matters we should briefly mention.

444.In Chapter 6 of the Interim Report, Lord Justice Briggs put forward the possibility of an Online Court for claims up to the value of £25,000. He considered the arguments which have been put for excluding from the Online Court claims for personal injury, and his “provisional view is that, subject to two aspects, the exclusionists currently have the stronger case.”658 There is however no specific mention of disabled claimants, or of the arguments for excluding discrimination claims by disabled claimants from the Online Court. A particular consideration is the difficulty which many disabled claimants have with online access. We suggest that specific thought might be given to this when reaching the conclusions for the Final Report, which is due in July 2016.

445.Chapter 11 of the Interim Report considers the arguments for and against bringing the employment tribunals and the Employment Appeal Tribunal (EAT) within the structure of the civil courts.659 The report notes in particular that these tribunals, unlike most other tribunals, deal with disputes between private parties rather than issues between private parties and the government. Here again we hope that the special problems of disabled claimants will not be lost sight of.

589 The words of Foskett J describing county court proceedings in R (on the application of Maxwell) v The Office of the Independent Adjudicator for Higher Education [2010] EWHC 1889 (Admin), para78, cited by Mummery LJ in the Court of Appeal [2011] EWCA Civ 1236 at para 19. They were drawn to our attention by Unity Law in their written evidence (EQD0127).

590 Q 51 (Rachel Crasnow QC)

591 Q 46 (Barbara Cohen)

592 See para 376

593 The Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013 (SI 2013/1893)

594 Taken from the tables published with Tribunal and Gender Recognition Certificate Statistics Quarterly, July to September 2015

595 We are puzzled to know why, in their written evidence, the Law Society said: “The statistics do not give details on the number of disability discrimination cases. The Law Society is not aware if there is any breakdown of the data on the volume of applications brought before and after the application of fees, which might reveal that there has been a disproportionate reduction in the number of claims brought by disabled people.” (EQD0163)

596 Ministry of Justice, Tribunal and Gender Recognition Certificate Statistics Quarterly, January to March 2015 (June 2015) p 8: [accessed 4 March 2016]

597 Written evidence from Sir Brian Langstaff (FEE0110)

598 R (Unison) v The Lord Chancellor, EHRC intervening [2015] EWCA Civ 935, para 60 (26 August 2015). This point was also made by Lord Dyson, the Master of the Rolls, giving evidence to the Commons Justice Committee on 26 January 2016 (Q 271)

599 Written evidence from The Bar Council (EQD0161)

600 Ibid.

601 Written evidence from The Law Society (EQD0162)

603 House of Commons Library, Employment tribunals fees, Briefing Paper, Number 7081, September 2015, p 28

604 Equality and Human Rights Commission, Response of the Equality and Human Rights Commission to the Consultation on reform of legal aid in England and Wales, February 2011, para 23: [accessed 15 March 2016]

605 Written evidence from the Equality and Human Rights Commission (EQD0083)

606 Written evidence from Mind (EQD0147)

607 Written evidence from Disability Law Service (EQD0051), and Louise Whitfield (a partner at Deighton Pierce Glynn, Solicitors) (EQD0090). See also the conclusions of the research of Legal Action Group quoted by the Law Centres Network in their written evidence (EQD0135), and a report by the Public Law Project quoted by the Law Society (EQD0162).

608 Written evidence from the Law Centres Network (EQD0135)

609 Q 167 (Jeanine Blamires)

610 Q 46 (Douglas Johnson)

611 Q 165 (Neil Crowther)

612 Written evidence from Discrimination Law Association (EQD0129)

613 Lord Justice Jackson, Review of Civil Litigation Costs: Final Report (December 2009), chapters 9 and 19: [accessed 3 March 2016]

614 Civil Procedure (Amendment) Rules 2013 (SI 2013/262), rule 16 and Schedule

615 Written evidence from the Law Centres Network (EQD0135)

616 Written evidence from Louise Whitfield (EQD0090)

617 Written evidence from Doug Paulley (EQD0097), Unity Law (EQD0127), Bar Council (EQD0161), and Lord Low of Dalston (EQD0165), among others.

618 Written evidence from Unity Law (EQD0127)

619 Written evidence from the TUC (EQD0055)

620 Q 183 (Nicky Morgan MP)

621 Written evidence from the Discrimination Law Association (EQD0129), Disability Law Service (EQD0051), the Law Society (EQD0163), Mind (EQD0147) and the TUC (EQD0055)

622 Q 44 (Barbara Cohen)

623 Q 44 (Douglas Johnson)

624 Q 72 (Dr Peter Purton)

625 Q 72 (George Selvanera)

626 Q 72 (Mark McLane)

627 Q 72 (James Lowman)

628 Government Equalities Office, Impact Assessment of removing the provisions in the Equality Act 2010 on the obtaining information procedure, (August 2012) p 4: [accessed 15 March 2016]

629 Government Equalities Office, Memorandum to the Women and Equalities Select Committee on the Post-Legislative Assessment of the Equality Act 2010, Cm 9101, July 2015, p 29: [accessed 3 March 2016]

630 Q 183 (Nicky Morgan MP)

631 Written evidence from Action on Hearing Loss (EQD0128), the Association of Colleges (EQD0073), the Disability Law Service (EQD0051), the Equality and Human Rights Commission (EQD0083), Law Centres Network (EQD0135), the Law Society (EQD0163), National AIDS Trust (EQD0136), Sense (EQD0122) and the TUC (EQD0055)

632 Written evidence from the TUC (EQD0055)

634 Written evidence from Doug Paulley (EQD0097)

635 Written evidence from Jeanine Blamires (EQD0171)

636 Written evidence from David and Jeanine Blamires (EQD0197)

637 The judgment was affirmed by the Court of Appeal, [2009] EWCA Civ 1213 (20 November 2009).

638 Q 102 (Jonathan Fogerty)

639 Ibid.

640 Equality Act 2006, section 30

641 Ibid., sections 28 and 29

642 Written evidence from the Discrimination Law Association (EQD0129)

643 Q 50 (Rachel Crasnow QC)

644 Supplementary written evidence from the Equality and Human Rights Commission (EQD0200)

645 Ibid.

646 Supplementary written evidence from the Discrimination Law Association and the Law Centres Network (EQD0203)

647 Criminal Justice and Courts Act 2015 (Commencement No. 1, Saving and Transitional Provisions) Order 2015 (SI 2015/778)

648 Written evidence from the RNIB (EQD0164)

649 Q 25 (Fazilet Hadi)

650 Written evidence from the Manchester Disabled Peoples Action Group (EQD0092)

651 In England and Wales, a US-style class action has just become possible under the Consumer Rights Act 2015 limited to cases suitable to be heard by the Competition Appeal Tribunal.

652 Supplementary written evidence from the Discrimination Law Association and Law Centres Network (EQD0203)

653 Q 51 (Barbara Cohen), Q 29 (Baroness O’Neill of Bengarve); written evidence from the Law Society (EQD0162) and supplementary written evidence from the Equality and Human Rights Commission (EQD0145)

654 The fee applies for each form ET1, which may include more than one claim on more than one ground.

655 Supplementary written evidence from the Government Equalities Office (EQD0173)

656 Q167 (Andrew Brenton)

657 The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 (SI 2013/1237), Schedule 1

658 Lord Justice Briggs, Civil Courts Structure Review: Interim Report (January 2016) para 6.47: [accessed 16 March 2016]

659 Lord Justice Briggs, Civil Courts Structure Review: Interim Report (January 2016) paras 11.8–11.19: [accessed 16 March 2016]

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