Response of the Equality and Human Rights
Commission to the Ministry of Justice consultation
on charging fees in Employment Tribunals and
Employment Appeal Tribunals
Consultation details
Title:
Source of consultation:
Date:
Charging fees in Employment Tribunals and
Employment Appeal Tribunals
Ministry of Justice
14 December 2011
For more information please contact
Name of EHRC contact providing response and their office address:
Keith Ashcroft, Jenny Earle and Glynis Craig, Legal Directorate
Telephone number:
0161 829 8408
Mobile number:
Email address:
Keith.ashcroft@equalityhumanrights.com
1
Introduction
1. The Equality and Human Rights Commission (the Commission) has a
statutory duty to promote equality and diversity, work towards the
elimination of discrimination, promote human rights and build good
relations between and among groups. The Commission has
responsibilities in nine areas of equality: age, disability, gender,
gender identity, race, religion or belief, sexual orientation, marriage
and civil partnership and pregnancy and maternity as well as human
rights.
2. Under the Equality Act 2006 the Commission may ‘advise central or
devolved government about the likely effect of a proposed change of
law’ (s.11(2)(d)).
3. The Commission welcomes the opportunity to respond to this
Government consultation. It is an important part of our remit to help
ensure that employees and employers understand their rights and
obligations, to help prevent disputes by for example providing advice
or guidance, and where disputes do arise to ensure that there are
effective and accessible means of redress.
4. The Commission’s 2010 report to Parliament “How Fair is Britain?”
(Triennial Review) noted findings from the Fair Treatment at Work
Survey 2008 that 13% of British employees had personally
experienced unfair treatment in the workplace in the previous 2 years,
and that 7% reported experiencing bullying, harassment or
discrimination. The Citizenship survey in 2009/10 found that 7% of
people in England and Wales felt they had experienced discrimination
in the labour market in the last 5 years by being turned down for a
job. A further 6% reported discrimination in promotion or progression
– a slight decrease from 2007-9. More women than men reported
unfair treatment.1
1
EHRC, How fair is Britain? Equality, human rights and good relations in 2010: The first Triennial
Review, published October 2010, p 444-5. http://www.equalityhumanrights.com/key-projects/how-fairis-britain/
2
5. We therefore also welcome the Minister's recognition in his foreword
to the consultation that it is vitally important that employees continue
to have meaningful access to justice.
6. We agree that it is important to encourage parties to think through
whether disputes might be settled earlier and faster by other means.
We hope that the Commission’s Statutory Codes of Practice on
Employment and on Equal Pay, as well as the associated nonstatutory guidance, will contribute to achieving this goal. As the
Commission’s Chair says in the Foreword to these Codes, “we only
want to intervene when things go wrong as a last resort. Our first
priority is to provide information, support and encouragement so that
organisations can get it right in the first place.” 2 Part two of each
Code provides advice on recommended practice to avoid
discrimination across the whole employment cycle. 3
Our legal approach
7. In our response we have taken particular account of the fact that
domestic discrimination law is largely derived from European Union
non-discrimination Directives. These require sanctions for unlawful
discrimination to be "effective, proportionate and dissuasive."4 The
Court of Justice of the European Union has said that a sanction must
have " a real deterrent effect" able to guarantee " real and effective
judicial protection."5
8. We have also taken into account the fact that national courts are
obliged to implement European Union law and protect the rights of
individuals under Union law. It is settled law that they can do so
according to their own domestic legal procedures, remedies and
sanctions. It is also settled law that "the detailed procedural rules
designed to ensure the protection of the rights which individuals
2
Equality Act 2010 Employment Statutory Code of Practice,2011, p.19
The Codes of Practice are available on the Commission’s website, or from TSO.
4 See for example Article 25 Directive 2006/54/EC on equal opportunities and equal treatment of men
and women in Employment and Occupation ( Recast Directive)
3
5
Case C-14/83 Sabine von Colson and Elizabeth Kamann v Land Nordrhein-Westfalen para 23
3
acquire under Community law are a matter for the domestic legal
order of each Member State, under the principle of the procedural
autonomy of the Member States."6
9. We have also borne in mind the fact that those procedural rules must
comply with two important European legal principles. Firstly, they
must comply with the principle of equivalence so that they should not
and cannot be less favourable than those applied to similar domestic
law claims. Secondly they must comply with the principle of
effectiveness so that they should not and cannot render the exercise
of rights conferred by European Union law virtually impossible or
excessively difficult.7
10. The obligation of signatory states to provide an effective remedy
for breaches of the European Convention on Human Rights (ECHR)
has been enshrined in Article 13. This Article was not incorporated
into domestic law by the HRA, on the basis that the HRA itself
provided the necessary domestic remedies. Nonetheless, the
Commission’s remit extends to this Article, because we have a
statutory duty to promote and protect all the rights of the European
Convention. Thus in responding to this consultation, we have had
regard to Article 13 standards. We have also considered the
requirements of Article 6(1) of the Convention, which guarantees the
right to a fair trial, including in the determination of civil rights and
obligations. Further, we have taken into account obligations under
Article 14, which guarantees enjoyment of Convention rights without
discrimination on any ground.
11. Section 9(2)(b) Equality Act 2006 also requires the Commission to
have regard to other human rights instruments. The UK has various
international obligations relating to protection from discrimination
under a number of human rights instruments, many of which require a
guarantee of equal and effective protection. For example, Article 26 of
the International Covenant on Civil and Political Rights states: "All
persons are equal before the law and are entitled without any
discrimination to the equal protection of the law. In this respect, the
6
Reemstma Cigarettenfabriken GmbH v Ministero delle Finanze C-35/05 para 40
7
Peterbroeck Van Campenhout SCS and Cie v Belgian State C-312/93 para 12
4
law shall prohibit any discrimination and guarantee to all persons
equal and effective protection against discrimination on any ground
such as race, colour, sex, language, religion, political or other opinion,
national or social origin, property, birth or other status."
12. In relation to disability, Article 5(2) of the UN Convention on the
Rights of Persons with Disabilities (CRPD) is couched in similar
terms: "States Parties shall prohibit all discrimination on the basis of
disability and guarantee to persons with disabilities equal and
effective legal protection against discrimination on all grounds."
13. Article 13 CRPD guarantees equal access to justice for persons
with disabilities. Articles prohibiting discrimination and guaranteeing
effective legal protection are to be found in the International
Convention on the Elimination of All forms of Racial Discrimination
(Article 6); the Convention on the Rights of the Child (Article 2); and
the Convention on the Elimination of all forms of Discrimination
against Women (Article 2(c)).
14. Finally, we have considered the common law, constitutional right to
access to a court and have taken into particular account the decision
of the Administrative Court in the case of Lord Chancellor ex parte
Witham.8
Our general approach
15. In our response we set out our views as to whether the proposals
are necessary or proportionate to achieve their stated aims and
consider whether there is a sufficient evidence base for them. We
also highlight areas where we believe there may be potential
adverse impacts on particular groups that could give rise to unlawful
discrimination, and where we believe there are potential breaches of
human rights standards and principles of European law.
16. Finally, it should be noted that we have focused only on those
questions that most clearly relate to our statutory duties outlined
above. This response does not address the question of the MoJ’s
8
1997 EWHC Admin 237 in particular paragraphs 13,23 and 27.
5
compliance or otherwise with the public sector equality duty, which
might be the subject of a separate assessment.
Question 1 - Are these the correct success criteria for developing
the fee structure? If not, please explain why.
Answer
17. The stated object of Option 1 is “to transfer part of the cost burden
from the taxpayer to the users” of the employment tribunal service.
The proposed success criteria are: recovering user contributions to
costs, developing a simple and cost-effective fee structure,
maintaining access to justice for those of limited means, encouraging
early dispute resolution.
18. We broadly agree with the success criteria, but will set out later in
this response our arguments in relation to the proposed fee levels
under both option 1 and 2 for discrimination claims. We understand
the Government's desire to reduce public funding throughout the legal
system but note that, with the exception of immigration appeals, fees
are not a feature of any other tribunals. This is doubtless because it
was intended that the tribunal system should be less legalistic than
the court system, in which fees are charged.
19. We do not consider that option 1 will be simple or easy to
understand. There is a three month time limit for lodging most tribunal
claims including claims of unlawful discrimination. During that time
parties may be going through internal appeal processes or attempting
to resolve matters by conciliation and often a claim will as a result be
lodged near the expiry of the time limit. It appears that a claim can
only be lodged once a fee has been paid or remission granted.
Remission will only be granted, save in exceptional circumstances, on
the production of evidence relating to means. There may be
difficulties for putative claimants to be able to furnish the required
evidence within the time limit particularly those who have recently
claimed benefit as a result of losing employment. We would contrast
this with the county court and Sheriff Court where deadlines to issue
are longer (six months for discrimination claims) which gives more
time to deal effectively with fee remission applications.
6
20. We note that research commissioned by the Ministry of Justice into
the effectiveness of the County Court fee remission system reported
that staff found the remission system complex to administer and were
prone to error. The researchers were also at pains to emphasise that
their study could not shed light on the important question of whether
potential court users were deterred from pursuing a legal remedy
because of court fees.9
Question 2 - Do you agree that all types of claims should attract
fees? If no, please explain why.
21. It is our view that consideration should be given to a fee system in
which all unlawful discrimination claims would be exempt from the fee
system.
22. Section 124(3) of the Equality Act 2010 extends the employment
tribunal's powers to make recommendations which benefit the wider
workforce on a finding of unlawful discrimination. An individual
claimant may therefore achieve broad and significant systemic
change in the workplace and that may often be the primary motive for
the litigation.
23. The tribunal has no such power in relation to any other claims
within its jurisdiction. The Equality Act recognises the unique nature
of discrimination and the importance of providing an effective, broader
remedy in successful claims. The aim of the provision is to enable
progress towards equality in the workplace and we take the view that
the introduction of fees would interfere with that aim because of its
deterrent effect.
24. We note that the Equality Impact Assessment recognises that the
proposal will have a financial impact on some individuals with
protected characteristics, notwithstanding the existence of the
remission scheme (paragraph 4.1 point 1). The assessment identifies
particular potential differential effects in respect of five characteristics
protected by the Equality Act 2010 (paragraph 4.1). It also finds that
9
PricewaterhouseCoopers LLP, Is the 2007 court fee remission system working?. Ministry of Justice
Research Series 15/09, December 2009
7
some of the "equality groups" are disproportionately represented in
the lower income brackets (paragraph 4.2).
25. The pay gap between certain groups remains significant, and
particularly disadvantages women, disabled people, and some ethnic
minority groups."10 Young and older workers are paid less than prime
age workers. The gap is largest for young workers.11 Individuals from
these groups who experience discrimination at work and need to seek
legal redress will be adversely affected by the introduction of fees.
26. More specifically, paragraph 20.4 provides a statistical analysis of
the number of complaints of sex discrimination and equal pay, which
comprise 14% of the total number of complaints lodged with the ET in
2009-10. Most of these complaints were made by women. It is
accepted that women are disproportionately represented in lower
income brackets and the consequence is that fee introduction may
have a disproportionate impact on women’s ability to bring a
discrimination complaint.
27. The Commission believes that requiring payment of a fee to bring
a discrimination claim may breach the principle of effectiveness as it
will make it difficult for individuals to enforce their EU law rights. We
do not think that the measures set out at paragraph 3.5 of the EIA will
"ensure that no one is denied access to justice through the
introduction of a fee." Nor do we think that those measures are likely
to be proportionate and thus justify what would otherwise amount to
indirect discrimination.
28. It is also our view that the proposal, despite the measures which
address the access to justice issue arising from the introduction of
fees, may breach the UK's obligations under Articles 6 and 14 of the
Convention.
29.
10
We deal specifically with each of those measures below.
Page 410 Equality and Human Rights Commission Triennial Review October 2010
11
Page vii Executive Summary of Pay gaps across the equality strands 2009 : a review by Hilary
Metcalfe of National Institute of Economic and Social Research
8
The application of the remissions policy
30. Paragraph 4.2 of the EIA accepts that people with some protected
characteristics would be disproportionately affected but for the
remission scheme which "ensures that no one is denied access to
justice through the introduction of a fee." We consider that the
obligations under Article 6(1) of the Convention, guaranteeing the
right to a fair trial, have been given insufficient attention. We believe
that the proposal is therefore in potential breach of Article 6(1) and 14
despite the remissions policy.
31. Although there is a regrettable lack of research evidence on the
issue, the Commission is aware through its Helpline and Casework
assistance services that people are deterred from pursuing
discrimination claims in the County Court or Sheriff Court by the costs
involved. Some of the individuals who have come to us for assistance
either through section 27 mediation or section 28, for goods, facilities
and services discrimination cases to be lodged in the County Court or
Sheriff Court have complained that the costs make commencing and
progressing a claim prohibitive. Whilst legal aid is in principle
available, those who do not qualify are unable to take their cases.
A recent example involved a section 27 mediation in a disability
discrimination case where the mediation was unsuccessful and
because the individual did not qualify for legal aid and was unable to
pay the fees and costs of a county court action was left with no
redress. Similarly, in an education disability case, the individual did
not qualify for legal aid as her earnings were too high. She is hoping
to go to mediation but if that fails she too has no redress as she said
that she would not be able to afford court fees (which are lower than
the proposed ET fees – see paragraph 43 below).
32. We consider that disabled people with certain impairments are
likely to be put at a particular disadvantage in relation to the
remissions policy. For example, someone with severe depression
may find the process too much to cope with to the extent that they are
unable to apply for the remission and consequently unable to lodge
the claim. We would welcome proposals to mitigate the effect of the
process on certain disabled people.
9
33. We consider that the fee remission policy itself may be indirectly
discriminatory against women because eligibility is assessed on
household income, aggregating the claimant’s income with their
partner’s12. In most cases where the woman is the claimant and she
has a male partner his income is likely to be higher than hers. The
impact of this will be that proportionately more women than men will
effectively require the consent or at least the financial co-operation of
their opposite sex partner in order to bring a discrimination claim or
indeed any work related claim.
Reimbursment of fees by the unsuccessful party
34. The success rate of discrimination and equal pay claims in the
Employment Tribunal is significantly lower than the comparable rate
for all other claims ( Annex A at page 25 of the EIA). The mitigating
effect of reimbursment for successful claimants may therefore be of
less assistance to those bringing discrimination claims.
The availability of a free alternative form of dispute resolution via Acas
35. We do not think that this will mitigate the adverse impact of the
requirement to pay a fee to initiate a claim. The details of early
conciliation are set out in paragraphs 61 to 70 of the Government's
response to the Resolving Workplace Disputes consultation. This
early conciliation will take place before an individual is able to lodge a
claim with the ET. Many employers will have insufficient incentive to
settle potential claims at this stage in the knowledge that a putative
claimant would be required to pay a substantial fee in order to
progress the claim.
36. The claimant will be reliant on the willingness of the employer to
contemplate settlement at an early stage and will have no option but
to lodge a claim if the employer is not prepared to do so. We support
the proposal to provide early conciliation via ACAS but we anticipate
that claimants will experience access to justice difficulties if
12
For an analysis of the effect of household means testing see Fran Bennett, Gender and Benefits,
Working paper No 30, Equal Opportunities Commission.
10
employers are unwilling to engage in early conciliation or when early
resolution cannot be achieved.
37. We believe that there is a risk that these proposals may have the
opposite effect to the one which the Government seeks to achieve,
namely the early settlement of disputes without the need for a
Tribunal hearing or, in some cases, even the need for a Tribunal
application. Once the claimant has paid a fee he or she may well
become more entrenched in the conduct of the litigation. Conversely
a respondent may decide not to engage in any settlement discussions
until the claimant has paid the fee which, under option 1, will not be
until the substantive hearing is imminent.
The setting of fees below full cost recovery
38. Although compensation awards in discrimination cases are not
usually large, some discrimination claimants will seek an award
above £30,000. We express our views on this threshold in our
answers to questions 18 and19. The level 4 fee in option 2 is set to
recover full cost. The assumption is that generally higher income
earners will receive awards of over £30,000 (paragraph 135 of the
consultation paper) because a large proportion of the value of awards
in these claims will relate to loss of earnings. As a consequence, the
equality impact assessment focuses on the effect the level 4 fee may
have on protected groups according to their income profiles. This fails
to take into account the fact that some claimants may be awarded
substantial amounts as compensation for injury to feelings. In some
discrimination claims, loss of earnings awards are large because of
the length of time that the person is unable to work rather than
because of high income bracket. We believe that the setting of the
level 4 fee will have a significant adverse impact on discrimination
claimants.
39. In addition, the fees for all discrimination claims under both options
are set at level 3 - under option 1 that means a total fee of £1500 if
the case goes to hearing. If £1750 represents total cost recovery then
discrimination claimants under option 1 are paying substantially more
than those bringing non-discrimination claims towards the cost of
running the tribunal. We believe that this puts them at particular
disadvantage.
11
40. The introduction of fees is likely to discriminate indirectly against
disabled people and against women because they are more likely to
experience discrimination in employment and are disproportionately
represented in lower income brackets.
41. It is our view that the proposal may breach the principle of
effectiveness. The introduction of a fee will, we believe, make it
excessively difficult for some individuals to exercise rights conferred
by the EU Equality Directives in relation to protection against
discrimination in the workplace. This is for two reasons. Firstly,
because the fees themselves will impede access to a court and are
likely to be disproportionate because of the levels at which they are
set. Secondly, because the requirement under option two to fix the
amount of compensation claimed (with no possibility of subsequent
revision of the claim's value ) of itself may violate the principles of
effectiveness and of equivalence.
42. We would make three points in relation to the principle of
equivalence. Firstly, we do not think that a comparison with the
county court fee regime is appropriate when considering equivalence.
The background section of the consultation paper (page 11) asserts
that employment tribunals users "have no more reason not to pay
fees than those seeking to gain access to their children." However,
legal aid is available for many Sheriff court and county court claims,
including discrimination claims. This covers the cost of legal
representation and the payment of disbursements including court
fees. In England legal aid is not available for Tribunal claims. In
Scotland, while Legal Aid Advice and Assistance by Way of
Representation is available in limited circumstances in Tribunals, it is
not equivalent to the availability of full civil legal aid in the Sheriff
Court. The existence and availability of legal aid in the county court
and Sheriff court is a powerful factor to take into account when
considering equivalence.
43. Secondly, the fee to issue in the county court or in the High Court
or to lodge an action in the Sheriff Court or the Court of Session is
substantially lower than the proposed fee to issue in the employment
tribunal under either option. As examples, under option one the fee to
issue a discrimination claim (£250) would be double the fee to issue a
12
discrimination claim with a value of between £3,000 and £5,000 in the
county court (£120) and nearly four times the fee in the Sheriff Court
(£65). Under option two the fee to issue a discrimination claim with a
value of over £30,000 (£1750) substantially exceeds the fee for an
equivalent claim in the county court which ranges from £395 to £685
for claims up to £100,000 and in the Sheriff court where the fee would
be £80 for all claims with a value over £5,000.
44. Whilst we of course accept that there are additional fees payable
in the county court, Sheriff court, High Court and Court of Session
during the course of litigation, the issue fee or lodging fee is
significantly higher. The issuing or lodging of a claim is a cornerstone
of the litigation process - it protects the claimant from being potentially
time-barred and gives the court subsequent jurisdiction to address
any injustices in the process. If the issue fee or lodging fee is set at a
prohibitively high level, which we believe it is, then the would-be
claimant is unable to enjoy the rights he or she would have in the
equivalent county court or Sheriff court jurisdiction.
45. Further , if the intention is to provide equivalence to the court fee
regime, it is significant that in Scotland, any party seeking to defend a
court action is also required to pay a fee to do so.
46. Thirdly, we would draw a comparison with the fee system in the
Immigration Tribunal in which the fees are considerably lower (£80 for
a paper appeal, £140 for a full hearing) and where there is an
exemption from fees for a range of appeals mainly relating to removal
and deportation. If employment tribunal fees are to be introduced then
we believe that an equivalent exemption should apply in relation to
discrimination claims.
47. It is also our view that the proposals may impede the common law,
constitutional right to access to a court as propounded by the
Administrative Court in Witham (see above). We take this view for
three reasons. Firstly, because of the deterrent effect of the fee itself
on those wishing to bring a claim. Secondly, because the potential
delay which is inherent in the remissions process may well preclude
proceedings in their entirety because claimants will find themselves
time-barred. Thirdly, the requirement under Option 2 to state the
value of the claim at the commencement of proceedings and commit
13
to that value throughout the litigation will result in some claimants
being unable to vindicate their claims to the full extent.13
48. It is therefore our view that to avoid the introduction of fees from
being indirectly discriminatory, in breach of the principles of
effectiveness and equivalence, in breach of the common law right to
access to a court, and in breach of Articles 6 and 14 in relation to
discrimination claims, these claims should be exempt from the fee
proposal.
We anticipate the concern that such an exemption may encourage
some claimants to bring weak discrimination claims rather than, for
example, an unfair dismissal claim in order to avoid a fee payment.
We would make three points in relation to this. Firstly, the
discrimination claim will still attract a fee unless it is brought as a
stand-alone claim. Secondly, it is unlikely that a claimant will choose
simply to bring a discrimination claim if the alternative claim is a
stronger one. Thirdly, one of the aims of fundamental review of
Employment Tribunal rules currently being led by Mr Justice Underhill
is to enable tribunals to deal robustly with cases where they appear to
have little or no reasonable prospects of success. The new rules will
no doubt facilitate the "weeding out" of weak claims generally. For
these reasons we do not believe that a fee exemption for
discrimination claims would result in the tribunal system being
inundated with unmeritorious discrimination claims.
49. We do not propose to answer questions 3 to 15 which mainly
relate to the detail of Option 1 proposals and are either outside our
remit or irrelevant given our position on fee exemption for
discrimination claims. We have commented on the remission scheme
in our answer to question 2.
Questions on Option 2
13
See,for example, Pervez v Macquarie Bank Ltd (London Branch) 2011 IRLR 284 it is " wrong in
principle that a group of employees, however limited, should notionally enjoy protections which they
cannot in fact enforce."
14
Question 18 - Do you think it is appropriate that a threshold should
be put in place and that claims above this threshold attract a
significantly higher fee?
50. We do not think that this is appropriate. We have made
observations on the potential general deterrent effect of fees in
answer to question 2. We believe that the effect will be significantly
greater for those wishing to bring Level 4 discrimination claims who
will be required to pay an additional £1,150.
51. We note at Tables 7B and C of the EIA that a significantly higher
percentage of claims of race and disability discrimination attract
awards of over £30,000 in comparison with claims of unfair dismissal.
For the period 2005/06 to 2009/10, 5.3% of unfair dismissal claims
attracted awards of over £30,000 in comparison with 11.7% of claims
of race discrimination and 15.5% of claims of disability discrimination.
There appears therefore to be a disparate impact on those protected
groups.
52. The practical effect of the imposition of this threshold will be a cap
on discrimination claim awards as many claimants will be compelled
artificially to limit the value of their claim because they cannot afford
to pay the level 4 fee.
Question 19 - Do you think it is appropriate that the tribunal should
be prevented from awarding an award of £30,000 or more if the
claimant does not pay the appropriate fee?
53.
We do not think it is appropriate in discrimination claims.
54. A successful discrimination claim may attract several heads of
compensation. These will include compensation for loss of earnings
to date of hearing and potentially beyond, injury to feelings caused by
the discriminatory act or acts, exemplary and aggravated damages in
England and a personal injury award if it is found that the
discrimination exacerbated or caused a medical condition. This is one
of the reasons why discrimination claims may attract higher awards
than other claims. . Tables 7B and C in the EIA, to which we have
referred in answer to questions 2 and 18, appear to confirm this.
15
55. In addition,Tribunals will also recognise in the award for loss of
earnings element of the compensation that some claimants with
protected characteristics (such as older workers or those with
disabilities) will have greater difficulty in finding new employment. 14
56. We note at paragraph 131 of the consultation paper that the
proposal will require claimants to assess the likely value of the award
they will receive if successful before applying to the Tribunal. Whilst
we agree that this is helpful to the parties and to the Tribunal, we
believe that there will be some difficulties for the claimant in
assessing the value of the claim accurately. Firstly, because many
unrepresented claimants will not be able to access legal advice on
the value of their claim. It is not the role of ACAS, as an independent
arbitrator, to give such advice to a claimant. It may be possible for the
employment tribunal to carry out a neutral evaluation of the value of
the claim during the course of the litigation but this is not currently
their role. Secondly, it is often impossible to quantify the value of a
discrimination claim at an early stage before the claim has
commenced. The claimant will not know how long he or she will
remain out of work, for example, nor will it be possible in many cases
accurately to assess the value of the injury to feelings claim at the
outset as the effect of the discriminatory act may be a continuing one.
This is significant because as the proposals stand, there is no option
to vary the amount sought as the claim progresses, to take these
factors or any other change in circumstances into account.
57.
The effect of this proposal will be that many claimants will pitch
their claim at below £30,000 regardless, simply because they cannot
afford the significantly higher fee.
58. We also believe that it would be unlawful to cap a discrimination
award at £30,000 in cases where the employment tribunal decides
that the award should be more. As the Government is aware, the
original limit on employment tribunal compensation awards for sex
discrimination was removed in 1993 by the European Court of
14
See for example Chagger v Abbey National plc and another
16
Justice.15 The Court ruled that the cap on compensation of £11,000
for sex discrimination which was then in force was unlawful. It
decided that in order for compensation to be considered "adequate" it
must enable the loss and damage actually sustained .... to be made
good in full according with the applicable national rules."
59. It is our view that this proposal will be open to a similar legal
challenge on the basis that the damage actually sustained by the
claimant has not been made good in full.
60. We do not propose to answer any of the other questions in the
consultation paper for the reasons we have already outlined.
Equality and Human Rights Commission
March 2012
15
Marshall v Southampton and South West Hampshire Area Health Authority (No.2) 1993 IRLR 445
ECJ
17