Is Government in breach of the Equality Act s.29&149 by encouraging settlements in Employment Tribunal cases and ignoring Claimant’s calls for level playing field routinely recorded hearings, reports of exploitation, or by protecting businesses?
Part 3 of the Equality Act 2010 (the Act) : Services and Public Functions
S.29 (2)A service-provider (A) must not, in providing the service, discriminate/victimise against a person (B)–(a) as to the terms on which A provides the service to B;
(b) by terminating the provision of the service to B;
(c) by subjecting B to any other detriment.
(3) A service-provider must not, in relation to the provision of the service, harass–
(a) a person requiring the service, or
(b) a person to whom the service-provider provides the service.
(6)A person must not, in the exercise of a public function that is not the provision of a service to the public or a section of the public, do anything that constitutes discrimination, harassment or victimisation.
S.31(4)& 150(5) EqA : “A public function is a function that is a function of a
public nature for the purpose of the Human Rights Act 1998”
S.149 of the Equality Act 2010 – Public sector equality duty, clearly states:
A public authority must, in the exercise of its functions, have due regard to the need to–eliminate discrimination, harassment, victimisation and any other conduct that is prohibited by or under this Act.
“An Act to make provision to require Ministers of the Crown and others when making strategic decisions about the exercise of their functions to have regard to the desirability of reducing socio-economic inequalities; (…)to require the exercise of certain functions to be with regard to the need to eliminate discrimination and other prohibited conduct“Equality Act 2010
This has been reaffirmed in common law in Aderemi v London and South Eastern Railway Ltd (Disability Discrimination Disability) [2012] UKEAT 0316_12_0612 (6 December 2012) :
“The purpose of the Equality Act is to remedy perceived discrimination where it exists and to remove the scourge and evil of discrimination because of a protected characteristic so far as may be done.”
Positive Action, under the Act, requires Government to take steps to eliminate disadvantages,
This Act, s.158 does not prohibit also from taking any action which is a proportionate means of achieving the aim of–
(a) enabling or encouraging persons who share the protected characteristic to overcome or
minimise that disadvantage,
(b) meeting those needs, or
(c) enabling or encouraging persons who share the protected characteristic to participate in that activity.
Other publications address problems encountered.
Oxford Public International Law, Max Planck Encyclopedia of Public International Law [MPEPIL] reads:” In 1929 the Harvard Law School drafted a private codification entitled RESPONSIBILITY OF STATE FOR DAMAGE DONE IN THEIR TERRITORY TO THE PERSON OR PROPERTY OF FOREIGNERS. Art.9 regarded as a denial of justice
1) the denial, unwarranted delay, or obstruction of access to courts
2) gross deficiency in the administration of judicial or remedial process
3) failure to provide those guarantees which are generally considered indispensable in the proper administration of justice“[here no HEARING RECORDING AND TRANSCRIPT]
4)”a manifestly unjust judgment, especially if it has been inspired by ill-will towards foreigners as such or citizens of a particular State.
This draft was resumed and detailed by the Harvard Law School (…) in the Art. 7 Draft Convention on Denial of a Fair Hearing.”
In 1989 Equal Opportunities Commission published ‘Trial by ordeal: a study of people who lost Equal Pay and Sex Discrimination Cases’, in it accounts of experiences:
“The Chairman …completely dominated both the others on the panel. He twisted and turned things to the company’s advantage.”
“I had a feeling that the members of the bench were on the employer’s side”
“I was led by all sources to believe that a Tribunal was conducted with informality and was more or less an open discussion. This isn’t so. We did not sit round the table. The witness is in a box, takes an oath and has questions fired at them with such a speed the brain numbs. The chairman who fired the questions at me did so like a machine gun.”
“I thought that the chairman’s behaviour was disgracefully biased right from the start.”
“My experience was that I was fighting both the defendants and the Tribunal.“
Similar experiences were reported to the Government in 2007 Report “The experience of claimants in race discrimination Employment Tribunal cases 2007”:
“Chair who would hear their case fairly as being ‘luck of the draw’, “Chair being quite hostile and sarcastic in his tone’
“Unfair process stacked against them from the beginning’
“decision reached seemed very different to how the claimants remembered the hearing to have gone’
“decision reached did not bear much resemblance to the hearing‘
“the Judgment was very different from what had happened in the Employment Tribunal’
“a suggestion of racism at the hearing itself’
“it turned out to be like a battle situation, they had 10 people at their table”
“frustration at hearing to listen to the respondent lie in response questions and in statements. Disappointed in the Tribunal for not holding the respondent to account for this”
“if you went to an ordinary court and told those lies you would be charged with perjury”
“the ruling did not correlate with how they viewed the proceedings”
“how the respondent’s statements had contradicted each other”
“when he received the judgment in writing, it shocked him greatly.Judgment was of an entirely different tone to the way he had experienced hearing”
“It looked like the judgment was written by the opposite party’s lawyer”
Navigating Employment Tribunal system is far from easy and highly adversarial.
The system Claimants are placed in (unknowingly or unwillingly) to seek workplace discrimination justice is very adversarial in nature, therefore this cannot be then used against Claimants who are being pursued with various practices by stronger legal firm.
The Employment Tribunal was reformed on several occasions in 1)Gibbons(2007), 2)Beecroft(2011), Briggs-operational cost of running ET in 2015/16 £1,893mil vs Civil Courts £404mil, recommended joining ET to CC or 3)Taylor Reports(2017). Claimants’ experiences were however overlooked and downplayed:
1)”review the options for simplifying and improving all aspects of employment dispute resolution.(…)adapting the Regulations if it were agreed that they are not working as intended. If implemented, they should reduce the complexity of the current system and reduce costs to business and employees.
Employment tribunals-Too bureaucratic and complicated
Employment tribunals are considered too costly and complex for all involved. The requirement to focus on procedure rather than merits is now excessive.
The Review heard that vulnerable employees can be deterred from accessing
the tribunal system by the complexity of both the underlying law and tribunal
process. In such cases the need to confront the employer directly before
applying to a tribunal could act as a barrier to justice“
2)”Employers and employees share many of the same concerns about tribunals. The rules are very complicated and there is a feeling that the outcomes are inconsistent because different panels take different views of similar cases.“
“The burden of proof on the employer could be reduced, making it harder for the employee to claim to a tribunal that the process was flawed. Reducing the burden of
proof would also address the problem of employees claiming that dismissal was for discriminatory reasons rather than performance reasons since if it is easier to prove that dismissal was for underperformance it is harder to say that it was for discriminatory reasons.“
“One of Mr Beecroft’s recommendations was a suggestion to bring in no-fault dismissal.”
“The third party harassment provisions of the Equality Act 2010 Law should be rescinded.”-succeeded
Gov response ““At a time when workers are proving to be flexible in difficult economic conditions it would almost certainly be counterproductive to increase fear of dismissal.”
3)”In terms of our recommendations we have focussed broadly on three challenges:
• Tackling exploitation and the potential for exploitation at work;
• Increasing clarity in the law and helping people know and exercise their rights; and
• Over the longer term, aligning the incentives driving the nature of our labour market with our modern industrial strategy and broader national objectives.”
“Fairer enforcement. We identify a number of issues for examination:
• Action is needed to ensure employment protections are
enforced and that vulnerable people have confidence that
they will get redress for exploitation;
• Those seeking justice in the courts should be enabled to
discover whether they are eligible for the rights they wish
to pursue before incurring a fee;
• The State should show its support for successful
claimants by acting to ensure they get paid monies due.”
“Vulnerable individuals should be able to rely on the state to protect them, challenging unlawful practices and taking action to enforce rights. Only then can we ensure that unscrupulous businesses are not able to use exploitation as a technique to gain competitive advantage.
The employment tribunal system is also not without its faults. From the decision to take action against your employer to winning or losing the case against them, the odds are often stacked against the worker.“
Government enforces some workers rights, but in the most complex like discrimination or dismissals Claimants are set to fail in own resources against large legal companies and in highly adversarial litigation for years on end.
“In 2016 the new statutory role of Director of Labour Market Enforcement was created. Professor Sir David Metcalf took up office at the beginning of this year and is tasked with producing an annual labour market enforcement strategy to set the strategic direction of the GLAA, EAS, and HMRC’s NMW/NLW team.”
Evidence to the WEC, 27 March 2019, Enforcing the Equality Act: The law and the role of the Equality and Human Rights Commission, HC 1470 stated:
“Q278 Eddie Hughes: Many of our witnesses have argued that employers and service providers are able to ignore the Equality Act 2010 without fear of challenge. Can lessons for enforcement of the Equality Act be drawn from your work on developing an effective model of labour market enforcement?
Professor Sir David Metcalf: Well, forgive me but although I know a
little about the Equalities Act—not least because the wonderful secretariat
managed to give a good briefing on it yesterday—I do not know very
much about it.“
“We started this inquiry with a sense from our work over the past four years that for
equalities legislation to be more effective the burden of enforcement needed to shift
away from the individual facing discrimination. This inquiry has confirmed that not
only is this burden too high, but that that the individual approach to enforcement of
the Equality Act 2010, and its predecessors going back to the 1960s and 70s, is not fit
for purpose.
We want to see a model that can act as a sustainable deterrent to
achieve system-wide change that tackles institutional and systemic discrimination.”
House of Commons, Enforcing the Equality Act: the law and the role of the Equality and Human Rights Commission, 17 Jul 2019
‘Taylor review’ never implemented by the Government with Employment Bill on hold, has been challenged by the Universities in a 2019 study during 4 years and 158 Claimants in CABx and published on 17 Aug 2019 in the Industrial Law Journal “Fighting with the Wind: Claimants’ Experiences and Perceptions of the Employment Tribunal”Nicole Busby and Morag McDermont:
“Their (workers) experiences and perceptions shed valuable light on the operation of the ET system. Many claimants were left dissatisfied, in particular those whose cases did not make it to full hearing. The data identify a range of barriers to justice which impact on the ability of individuals to advance their claims and to enforce remedies.”
“We conclude by calling for the need to reclaim the concept of access to the civil justice system as a public good, capable of transcending private interests and providing fundamental protections against worker exploitation.”
“However, in considering the wider implications of our findings against the backdrop of the recent Taylor Review, we found that little account appears to have been taken of the experiences of claimants such as those in our study. In Taylor’s report, repeated reference is made to ‘the most vulnerable workers’ who, it is recommended, require enhanced protection in certain respects. However no definition is provided of the term ‘vulnerable’ in this context nor is there any indication of the common characteristics shared by ‘vulnerable workers’ although it is assumed that the type of claimants in the current research would be included.”
“This article concludes that, in classifying certain workers as ‘vulnerable’, the Review and the Government’s response to it could serve to entrench the status quo. Rather than identifying and addressing the causes of worker vulnerability, including systemic failures to protect against exploitation, this approach implicitly conceptualises it as personal weakness ascribing responsibility to the individual. This raises serious concerns regarding the operation of labour law’s public function through litigation in the ET”
“Ministerial foreword to the 2011 consultation on the introduction of fees placed emphasis on the promotion of growth and the need ‘to confront the structural barriers that impede competitiveness, employer confidence and the creation of jobs’ (Ministry of Justice, Charging fees in employment tribunals and Employment Appeal Tribunal, Ministry of Justice, December 2011, 3). The policy of charging fees was justified on the basis of the need ‘to relieve pressure on the taxpayer and encourage parties to think through whether disputes might be settled earlier and faster by other means’ (at 3). The policy went ahead despite the fact that, in its own impact assessment, the MoJ had concluded that ‘claimants would tend to be worse off while respondents, taxpayers and HM Courts and Tribunals Service would be better off’”
“she was advised that she lacked the necessary two years continuous employment to make an unfair dismissal claim and that her allegations of race discrimination would be extremely difficult to prove. Marta described the impossible battle in which the limits of the law meant that her employer would not be held accountable,
You think you can fight with the wind…there’s nothing you can do if you start to fight the wind.”
As a result countless potential Claimants, usually non-English speakers, leave CABx without recourse and are not included in ET or any other statistics for discrimination.
Law Commission states in Remedies Public Bodies Scope:
“It is important to bear in mind the impact of the European Convention on Human Rights and the Human Rights Act 1998. The European Court of Human Rights has held that some of the Articles of the Convention impose positive duties on the state to protect citizens from certain harms. For example, the Court has held that Article 2 requires the police to take positive steps to protect individuals whom they know, or ought to know, are threatened with a real and immediate risk to their lives. Similarly, it has held that under Article 3 local authorities must take reasonable steps to take into care children whom they know, or ought to know, are being seriously harmed by their parents.Decisions of this nature impose duties on public bodies in circumstances where no duty might have been held to exist at common law, because, for example, the omissions rule (see above) might have precluded liability.”
[Osman v United Kingdom [2000] 29 EHRR 245. In Van Colle v Chief Constable of
Hertfordshire Police [2006] EWHC 360, [2006] 3 All ER 963
Z v United Kingdom (2001) 34 EHRR 97.]
And in “Smith v Littlewoods Organisation Ltd [1987] AC 241, where the conduct could be described affirmatively as careless control of property or as an omission to take
security measures.“
Lastly Inclusive Britain: government response to the Commission on Race and Ethnic Disparities, published 17 March 2022, states: “The panel found that racism does still exist in some areas and does still require action to overcome it”
Similarly most recent TUC survey published on 01 Sep 2022, More than 120,000 workers quit jobs because of racism, UK study suggests
“More than 120,000 workers from minority ethnic backgrounds have quit their jobs because of racism, suggests a landmark study that has found workplace discrimination is sapping the confidence of a large part of the UK workforce.”
Moreover according to the University of Manchester latest Report judiciary in UK has been found ‘institutionally racist’
“The judiciary in England and Wales is “institutionally racist”, with more than half of legal professionals surveyed claiming to have witnessed a judge acting in a racially biased way, according to a report.
52% had witnessed discrimination in judicial decision-making“
UofM Report “Thus, a judicially normalised air of racial bias has serious material consequences. It legitimates the Magistrates’ and Tribunal judges’ decisions to the detriment of racially minoritised people“
Countless Claimants and Whistleblowers fight, suffer and are entrapped in the system, that proved incomprehensible without Employment Tribunal hearing recording and transcript.
Race hate crimes are however on the rise.
Interesting fact
The Lord Chief Justice, Lord Judge, first permitted the use of Twitter (mobile email, social media) in Court in December 2010.
“Under the new guidelines, members of the media and legal commentators are no longer required to make an application to use text-based devices to communicate from Court in proceedings that are open to the public and not subject to reporting restrictions“
” In relaxing the rules for the media, the Lord Chief Justice recognised that “A fundamental aspect of the proper administration of justice is the principle of open justice. Fair and accurate reporting of court proceedings forms part of that principle”.
Most Claimant’s however don’t have the luxury of media presence, interested in a case journalist or even a friend, who could tweet the updates or take notes! There is unfairness and disproportionality in that some Claimants at present time can arrange 100s of remote observers, journalists and live transcripts from both parties, when others have no open justice at all and are left without any of the above reassurances.
There is also no transparency whatsoever in regards to complaints received by ET, as they go directly to the ET President and Judges themselves. The receipts or any breakdown of reason or outcome JCIO publishes for all Courts, is excluded for Employment Tribunal in the same detail and never reached disciplinary statements for ET Judges and excluded from JCIO Annual Reporting. FOIA requested was also refused on basis that JCIO is not a public authority. This is being looked at by ICO.
HMCTS Form EX107OFC indicating prior permission request for audio recording ‘off Tribunal framework’ is not available from Gov.uk web page along other ET forms and guidelines to this day.
Even legal officers are not that clear on the rules: Solicitors apologise after remote hearing recorded without permission, 28 June 2021
The President and HMCTS have not assured to this day Claimant’s, that all hearings will be recorded and transcripts made available, as per earlier statements:
As a LIP Claimant myself the feeling is, that you are being slowly but surely rid off as a bad apple from job market for raising discrimination, discrimination-exploitation or whistleblowing.
The Equality Act 2010 has insufficient safeguards from actual discrimination, harassment, victimisation, public disclosure in the workplace and further ET process is just trouble.
Its businesses that are protected.
Two thirds of cases are expected to settle and they do.
In Employment Law matters-Views from a Regional Employment Judge, Regional Employment Judge Wade, the Judge in charge of the London Central Employment Tribunal region, 21 December 2021 interview, she stated:
“we are constantly over-listed(…) the way we work it is that we expect at least 2/3 of cases that are listed for any one day will settle and indeed they do“15:40
And
“It is a significant burden in our system, that we are expected to provide written reasons for people, if they ask or if the hearing doesn’t finish in the allotted time. Sometimes there is no option but to do what we call a reserved decision and it is a SIGNIFICANT BURDEN on Employment Judges. Judges in County and Higher Courts don’t have that obligation – THEY HAVE TRANSCRIPTS AVAILABLE. We do not, we do not record our hearings, we do not have transcripts available, so the Judge has to sit down and CRAFT a written decision which can be very long and time consuming, so they need at least a day to come to their decision and get it into some kind of shape that it could be produced as a written document.”14:40
Please support whistleblower’s Employment Tribunal appeal (with an 8 Employment Tribunal errors) of Alison McDermott
Settlement would constitute a cover-up, like in all discrimination and whistleblowing workplace disputes.
No-one goes through 4 years of hellish stress and turns down £160k for their own self-interest.
“Appeal Hearing: 17/18th January 2023
Fantastic news: I’ve been granted permission to appeal the judgment on eight grounds. They will now face fresh scrutiny in a higher court in London.”
Support Petition for recording of Employment Tribunal hearings here (click image below):
Footnotes - Reports links New report on racism in the UK judiciary [CoDE Centre on Dynamics of Ethnicity:https://mailchi.mp/73d2a7cbf376/code-newsletter-oct-2022] This report raises urgent questions about racial attitudes and practices in the justice system in England and Wales. It draws on a survey of 373 legal professionals and finds: 95% of respondents said that racial bias plays some role in the processes or outcomes of the justice system, 29% said it played a ‘fundamental role’. A majority of respondents had witnessed one or more judges acting in a racially biased way towards a defendant and in their decision-making. In the media 'Judiciary in England and Wales ‘institutionally racist’, says report' Haroon Siddique in The Guardian. 'Judiciary is ‘as racist as the police force’' Catherine Baksi in The Times. 'Experts uncover 'institutional racism' in the justice system of England and Wales following report', ITV. New labour Government’s Green Paper Routes to Resolution, at: http://webarchive.nationalarchives.gov.uk/20060214180434/http://www.dti.gov.uk/er/individual/resolution.pdf M. Gibbons, Better Dispute Resolution (DTI, 2007), at: https://webarchive.nationalarchives.gov.uk/ukgwa/20090609003228/http://www.berr.gov.uk/files/file38516.pdf The Coalition Government’s Resolving Workplace Disputes: A Consultation (BIS, 2011), at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/31435/11-511-resolving-workplace-disputes-consultation.pdf A. Beecroft, Report on Employment Law (24 October 2011) at: https://www.gov.uk/government/publications/employment-law-review-report-beecroft Matthew Taylor, ‘Good Work; The Taylor Review of Modern Working Practices’, Report available at: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/627671/good-work-taylor-review-modern-working-practices-rg.pdf (‘the Taylor Review’) Survey of Employment Tribunal Applications (SETA) 2018: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/899048/survey-employment-tribunal-applications-2018-findings.pdf "Claimants who were dissatisfied with the workings of the employment tribunal system were asked why this was. The most frequent response was that they thought the tribunal system was unfair (19 per cent), while 13 per cent felt that they did not receive any help or support, and the same proportion (13 per cent) said that the costs were too high. Claimants were more likely to say that the hearing was more favourable to the employer (32 per cent) than to the claimant (2 per cent). Analysis by demographic characteristics shows differences by ethnic group, with white claimants more likely than those from other ethnic groups to say that the employment tribunal hearing gave each party a fair chance to make their case." J Aston, D Hill & ND Tackey, The Experience of Claimants in Race Discrimination Employment Tribunal Claims (DTI, ERRS 55, 2006): https://www.employment-studies.co.uk/system/files/resources/files/errs55.pdf A Denvir, A Broughton, J Gifford and D Hill, The Experiences of Sexual Orientation and Religion or Belief Employment Tribunal Claimants (ACAS, 2007, removed from ACAS site!): https://www.employment-studies.co.uk/resource/experiences-sexual-orientation-and-religion-or-belief-discrimination-employment-tribunal Fighting with the Wind: Claimants’ Experiences and Perceptions of the Employment Tribunal,Nicole Busby* and Morag McDermont: https://strathprints.strath.ac.uk/70049/
ET stop oppressing me I just want justice 2405428/2016&2402211/2019 