From 1st October 2015, the Deregulation Act 2015 has come in to force. The Deregulation Act provides for the removal or reduction of burdens on businesses, public sector bodies and the taxpayer…
The Act is considerable, including measures relating to general and specific areas of business, companies and insolvency, the use of land, housing and development, transport, communications, public authorities, legislative reform and much more.
The part of the Act that is of relevance to employers is the removal of the Employment tribunal’s power to make “wider recommendations” in successful discrimination claims.
Pre 1st October 2015 approach – a history of the Employment tribunal’s powers under Section 124 Equality Act 2010 (EqA 2010)
Under section 124(2)(c) of the EqA 2010, Employment tribunals had the power to make “appropriate recommendations” to an employer in successful discrimination claims.
Section 124(3) explains that an “appropriate recommendation” is “that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect on the complainant of any matter to which the proceedings relate.”
As well as awarding compensation to the claimant, recommendations could be made to the benefit of other workers still employed by the employer. The intention behind giving recommendations was to ensure that the employer’s duties did not stop at paying compensation, encouraging employers to consider the possible ‘pitfalls’ in their practice and how to appropriately amend these in accordance with the tribunal’s recommendations.
Examples of previous recommendations include;
- Mental health disability training (Crisp v Iceland Foods Ltd (2012));
- Staff undergoing diversity training (Tantum v Travers Smith Braithwaite Service (2013));
- In Why v Enfield Grammar School (2012), a wider recommendation was made to the effect that the senior management team and all heads of department had training on equal opportunities employment law within six months.
As you can see, depending on the size of your business and number of staff, implementing such a “recommendation” could be a lengthy and difficult process.
The Employment tribunal exercised their discretion to make recommendations even before the EqA 2010 came in to force, for example in Lycee Francais Charles de Gaulle v Delambre (2010). This case involved an employee successfully claiming he had been discriminated against on grounds of his age and had been victimised. It was ordered that a review and amendment of the employer’s discipline and grievance, equality and recruitment policies by a qualified HR adviser were to take place and formal equality and diversity training to be delivered throughout the employer’s organisation.
It is clear from the case-law that the Employment tribunals exercised their power under s124 EqA 2010 to make very broad recommendations. Even though the re-training of staff in particular key areas of practice and reviewing of policies is beneficial in the long run in helping to avoid discrimination claims in the future, as employers know, the re-training of staff and review of company policies is a costly and intricate process. Procedural and policy changes require time, legal advice and employment law “know-how”, which is difficult in an ever-changing legal area such as this.
Post 1st October 2015 approach
Section 2 of the Deregulation Act 2015 amends section 124(3) of the EqA 2010, removing the powers of Employment tribunals to make wider recommendations in successful discrimination claims.
Can it be said that reducing the tribunal’s powers in making recommendations strikes the right balance between protecting people from discrimination and giving the employers the freedom of deciding how best to amend their own procedures? Recommendations are not binding, but without the incentive to avoid an increase in compensation to the claimant for failure to implement them if relating to him/her, how can we be sure employers will tackle the shortcomings of their workforce following a successful claim?
If an employer ever finds themselves at the end of a successful discrimination claim, they can breathe a sigh of relief knowing they have the freedom to amend their own policies, decide when to have staff re-training and how to implement procedural changes. However, the removal of the Employment tribunal’s recommendations is a double edged sword. Employers must be pro-active in ensuring staff are fully aware of company anti- discrimination policies, how to appropriately amend procedures and change, if necessary, how they are practised. Without Employment tribunal recommendations, some employers may find it difficult knowing how to approach these topics with staff and how to change their attitudes to ensure claims don’t arise in the future.
Is it beneficial for employers to just have to pay compensation to conclude discrimination claims? How will this impact on the wider workforce? The answers to such questions remain to be found, but as in the 2014/15 financial year alone there were 219 discrimination cases where compensation was awarded, the effects of this Act on the future of how employers ‘pick up the pieces’ after a discrimination claim remains to be seen.
If you need advice on how to prevent and manage discrimination claims, the Employment tribunal process itself or any other employee related problem, please do not hesitate to contact our Employment Department on 01642 610 300, or email our Head of Department Julie Bruce on J.firstname.lastname@example.org.
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