Flying a Kite?

A double page spread in The Times on 1 February consisted almost entirely of negative comments about employment tribunals. The writer, Dominic Kennedy, also floated the idea that we could do without employment tribunals by finding a better way of enforcing employment rights.

Mr Kennedy referred to a recent case in which a marketing manager named Helen Larkin was made redundant when she was pregnant. She took her own case to an employment tribunal and won. The tribunal made findings of unfair dismissal and discrimination on grounds of pregnancy. It cannot have been an easy or pleasant experience for Ms Larkin, preparing for and fighting a tribunal case, without legal representation, during the latter stages of pregnancy and during the first year or more of her baby’s life.

Mr Kennedy said that the ‘ordeal faced by wrongly treated working women’ like Ms Larkin ‘is fuelling interest in alternatives to employment tribunals, such as inspectorates, enforcers or ombudsmen’. He gave examples of state enforcement of employment rights, such as enforcement of the minimum wage by HMRC and of working hours by HSE. He asked rhetorically whether this could ‘be the direction of travel for all mistreated workers’.

It would be very much the wrong direction of travel. If Mr Kennedy was flying a kite, there are at least three reasons why it merits an early crash landing.

First, if the idea is that a new enforcement body should wholly replace the tribunals, so that individuals would have no right to bring claims if that body took no action, then the direction of travel would be to the distant past. The Race Relations Act 1968 contained limited provisions against racial discrimination, but a Race Relations Board was given the job of enforcing those provisions. All claims had to go through the Board. The subsequent laws against race, sex and disability discrimination, from 1975 onwards, have given some enforcement powers to statutory bodies, but those powers sit alongside the right of individuals to take their claims to an employment tribunal. A return to the 1968 approach would not be practicable, in view of the great expansion of rights under the equality legislation. More importantly, it would be unacceptable in principle. In 2017, the Supreme Court declared that the fees regime which had been introduced for employment tribunal claims was ‘unlawful under both domestic and EU law because it has the effect of preventing access to justice’. A scheme under which discrimination claims could not be pursued except through a statutory body would be an even more objectionable way of preventing access to justice.

Secondly, enforcement of laws such as those on the minimum wage and working hours cannot be equated with the laws on discrimination. The latter are very much more complicated. In Ms Larkin’s case, for example, there was a genuine redundancy situation and the main issue was whether her pregnancy was the reason or one of the reasons for not selecting her for an alternative post. To resolve that issue, the tribunal had to consider a good deal of documentary and witness evidence, make findings of fact and draw appropriate inferences. Questions such as the amount a worker is being paid or the number of hours being worked, on the other hand, are straightforward questions of fact.

Thirdly, statutory enforcement bodies are not necessarily given the last word. For example, under the Working Time Regulations there is a right of appeal against an improvement or prohibition notice. And where does the appeal go? Yes, to an employment tribunal. It is easy to imagine the outrage which would be expressed by employers and their organisations if they were put at risk of findings of discrimination and awards of compensation by a statutory enforcement body, without being able to challenge those findings or awards.

Of course, if the direction of travel were to be towards greater state enforcement of the equality laws, it would not be necessary to look very far. We already have a statutory body with enforcement powers - the Equality and Human Rights Commission (EHRC). The EHRC has extensive powers, including the powers to carry out an investigation where unlawful discrimination is suspected, to require preparation of an action plan where unlawful discrimination is found and to oversee compliance with the action plan. However these powers are not unfettered. There are rights of appeal against both a finding of unlawful discrimination and a requirement of an action plan. Where the alleged discrimination is in the employment field, the appeal is to an employment tribunal.

Surprisingly Mr Kennedy does not mention the EHRC, even though two recent investigations, into the BBC and the Labour Party, have recently received a good deal of publicity. The EHRC reported on both investigations in November 2020, making findings of unlawful acts against the Labour Party but not against the BBC. The forthcoming update of ‘Discrimination Law’ comments on both investigations and also contains an expanded treatment of the whole range of powers and responsibilities given to the EHRC in relation to equality and discrimination.

The update also points to an unfortunate gap in those powers. Owing to defective wording in the Equality Act 2006, the EHRC does not have explicit powers to investigate discrimination in contractual pay. Fortunately the omission did not prove to be material to any current or recent investigation, because there was no finding of discrimination as a result of the BBC investigation. It does however need to be corrected before there are any further equal pay investigations.

One of the EHRC’s powers which is particularly relevant to Mr Kennedy’s report is the power to assist claimants, by providing or funding legal advice and/or representation. The EHRC does give assistance, but its funding has been reduced over the years and there are therefore constraints on the cases which it can assist. There was a time, in the 1980s and 1990s, when the predecessor bodies (initially the Equal Opportunities Commission and the Commission for Racial Equality) had much greater flexibility. They were able to assist very many cases on the grounds that the case appeared to be meritorious and that the claimant would be at a disadvantage if unassisted, even where the case did not give rise to any new principle. I was one of many solicitors up and down the country acting for claimants assisted by the EOC in pregnancy dismissal cases. It is disappointing that there are still so many such cases and that women like Ms Larkin are having to fight their cases without any legal representation. An obvious solution is to give more funding to the EHRC so that it can support more of these cases.

In summary, we don’t need a new enforcement body for discrimination cases; we have the EHRC. Greater funding for the EHRC could help to overcome some of the problems identified by Mr Kennedy. Whatever new powers are given to the EHRC or any other statutory body, the employment tribunals will continue to have an essential role.

Michael Discrimination Law LooseleafMalone is a contributor to the Discrimination Law Looseleaf. 

Written by Michael Malone

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