Employment and Law Tribunals

Baroness Garden of Frognal Excerpts

Thursday 27th November 2014 Grand Committee

[Baroness Garden of Frognal (LD)]

My Lords, I thank my noble friend Lord Glasgow for calling today’s debate on discrimination, with particular reference to employment law and tribunals. Eradication of discrimination in this country remains a priority for this Government, as I shall set out.

First, I would like to explain for the benefit of the Committee that, subject to certain exceptions, discrimination is prohibited in the Equality Act 2010 where it occurs because of a person’s protected characteristic. The protected characteristics are age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. As my noble friend pointed out, the 2010 Act brought together and strengthened a raft of equality legislation that had built up over time, beginning with the race and sex discrimination Acts of the 1960s and 1970s. Protection generally applies across a number of fields, notably employment, the provision of services, and the exercise of public functions, schools and transport.

The Government have added further protections since 2010, chief among them the introduction of provisions for the marriage of same-sex couples. In October 2012 we also brought in the prohibition on age discrimination in the provision of goods, facilities and services. Unusually, neither of these initiatives was required under EU law, but most of the protections in the 2010 Act are and implement either an equal treatment directive or a decision of the Court of Justice of the European Union.

As with other employment laws, the 2010 Act’s provisions, as they relate to the field of employment, are enforceable at an employment tribunal where attempts at non-judicial settlement have failed. I note my noble friend’s attempt to settle his case through non-judicial means. A party losing at a tribunal has the option to appeal the decision to the Employment Appeal Tribunal. Fees are now charged for lodging cases at a tribunal but if an appeal succeeds, the tribunal may order the employer to refund the fees as well as pay compensation to the claimant.

My noble friend mentioned a suggested award of 10 times the claim if discrimination had been proven, but while that might have been the claim it would have been fairly exceptional for a discrimination award. Most awards are still in the hundreds or very low thousands of pounds. Nevertheless, the level of compensation in discrimination cases is in theory unlimited. This is a requirement under EU law, since any statutory capping of compensation means that victims of discrimination do not have an effective remedy.

When considering cases of alleged discrimination, employment tribunals will therefore have regard to the Equality Act 2010. The Act includes a number of key provisions which together define “discrimination” for the purposes of that legislation. For the purpose of this debate, I will talk briefly about the definition of “direct discrimination” in the 2010 Act. Section 13 defines direct discrimination as the “less favourable treatment” of a person because they have one or more protected characteristics.

Following EU directives and a ruling by the European Court of Justice, this definition of direct discrimination is now broad enough to cover cases where the less favourable treatment happens because of a person’s association with someone who has one or more protected characteristics; for example, where a person is treated less favourably because they are associated with someone who has a disability. This definition also covers situations where people are wrongly thought to have a protected characteristic; for example, where a person is not offered a job because they are wrongly thought to be gay.

I appreciate that my noble friend might have concerns about the breadth of the legal definitions of discrimination, but I have to say that the Government fully support the approach of the 2010 Act, since a narrower definition would exclude from protection people who really ought to be protected. We have, however, been discriminating—as opposed to discriminatory—in our approach to the Act. As I have mentioned, we have implemented most of the Act, including one or two key protections, such as that against age discrimination in the provision of goods and services, in the past couple of years. At the same time, we have sought to protect employers and businesses from excessive regulation by repealing or leaving uncommenced some unnecessary, outdated or otherwise unsatisfactory provisions in our drive for better regulation.

My noble friend may also be concerned about legal costs and a burgeoning legal industry around discrimination claims, but I have to say that this is not borne out by the recent statistics, which show that disability discrimination claims in the first quarter of the current year fell by 31% compared with the first quarter of last year. Indeed, as the noble Baroness, Lady Thornton, pointed out, a general and significant fall in claims of 59% since 2012-13 for all employment claims, including discrimination, has clearly been one of the key developments in this area of litigation during this Parliament. It is attributable to a number of factors; namely, better compliance by employers and a major drive towards encouraging pre-hearing settlements through the involvement of ACAS in every claim—as well as, no doubt, the introduction of a fee structure.

I hear what the noble Baroness says about her concerns that fees are pricing claimants out of the justice system. The Government believe that it is reasonable to move away from employment tribunal funding being largely provided by the taxpayer towards a more balanced process, where the £74 million cost of administering claims to the employment tribunal system are met in part by those who use and benefit from the system. However, the Government are being very careful in ensuring that fee waivers are available for people of limited means so that they are not excluded from seeking redress in tribunals. The Government have committed to reviewing the introduction of fees and are currently considering the scope and timing of the review, and we will bring forward our plans in due course. I hope that provides some reassurance to the noble Baroness.

Whatever weight one gives to each of these factors, it can no longer be claimed that employers are being subjected to an ever-increasing volume and array of discrimination claims to the benefit of lawyers. The nature of the law has remained the same but the litigation arising from it and the claims confronting employers as a result of it have been substantially reduced.

I turn now to some of my noble friend’s specific questions. Why cannot discrimination be more precisely defined? The UK definition of discrimination is largely dictated by European measures such as the treaties and various directives. It is not for the Government to define discrimination. This has already been done by Parliament and it is now for the courts and employment tribunals to apply the statutory definition of discrimination to the facts of the different cases they hear. It sounds as though that was done in my noble friend’s case, but obviously not until after a quite long and lengthy business.

My noble friend asked about employees abusing the discrimination laws by making vexatious and frivolous discrimination claims. Anyone who feels that they have been wronged is entitled to make a claim. Whether they will be successful is a matter for tribunal judges to decide. However, as I have mentioned, the latest statistics show that there has been a sharp decrease in the volume of cases brought before employment tribunals. Among other factors, this fall can be attributed to the impact of mandatory conciliation. This was introduced in May 2014 and will probably help a great number of small employers in the position that my noble friend found himself in.

My noble friend also mentioned the hiring or firing of pregnant women. In the case he quoted, surely the outcome for the woman is the same. Whether she is taken on or whether she is fired, the result is that she is deemed not to be employable when she is pregnant. That is one of the things we have tried to move away from in the laws that have been introduced.

My noble friend claims that the compensation award for successful discrimination cases is too high.

[Baroness Thornton]

The noble Baroness is absolutely right on the point she has just made. Many years ago I was in charge of the CABs in north London and I was looking for a Spanish speaker to work in the Paddington law centre. The best candidate was a six-month pregnant Chilean woman. I gave her the job because she was the best candidate and I believed that she would not have put herself forward if she did not think she could manage that job and having a baby. You know what? She was brilliant.

[Baroness Garden of Frognal]

There we are. Thank you very much for that. My noble friend and I are both Liberal Democrats, a party with a long-standing commitment to equality, a proud record of tackling inequality and of trying to face up to discrimination in the past. We strongly support the need for the law to defend the rights of all citizens to play a full part in an increasingly global society, whether or not they are pregnant, as the noble Baroness said.

My noble friend has raised a difficult case which merits airing. I hope this clarifies for him, to some extent, the Government’s position on the definition of discrimination. If he had a similar case again now, the mediation and the other factors would perhaps result in a happier conclusion at an earlier stage for him.

[The Earl of Glasgow]

It was a happy conclusion.

--- Later in debate ---

[Baroness Garden of Frognal]

It was a happy conclusion but it was not a happy process. I hope the process has now been improved.

The operation of employment tribunals which hear discrimination cases is of great importance and the Government seek always to strike the right balance between the rights of claimants on the one hand and those of employers such as my noble friend on the other.

I again thank my noble friend for bringing this debate forward and the noble Baroness, Lady Thornton, for her contribution. I hope we have brought clarity to this matter.

Committee adjourned at 4.19 pm.