The Glaring Flaw in the Equality Act

sam — Sat, 18 Nov 2017 14:37:12 +0000

sam Sat, 18/11/2017 - 14:37

The Equality Act 2010 has some wonderful provisions related to disability – largely taken from the Disability Discrimination Act 1995 (DDA). Not perfect, but its provisions should have taken us a huge way towards broadening accessibility and removing structural inequality. But most disabled people can tell you that the Equality Act, like the DDA before it, has done no such thing. This is largely because of one glaring flaw in the structure of the act.

That problem is enforcement.

This is going to get a bit technical, and just to avoid confusion, I am not a lawyer and not in any way legally qualified. I read a lot, though, including about what people have had to do in order to try to enforce their rights, as well as actual references about related law. For the most part, the DDA and the Equality Act create new categories of civil claim – that is, reasons you can sue people. The disabled person who has been discriminated against, failed to have reasonable adjustments made to allow their access, or been harassed or victimised, is able to make an application to a court for damages. In the case of employment, that application is instead to a tribunal, for a finding of, for example, unfair dismissal, or workplace discrimination related claims. In both cases, it is incumbent on the disabled person to bring this claim, with associated costs; costs in the small claims track of the county court start at £25, but if you are claiming damages enough to actually make a business take note, it rapidly gets higher – with a claim of £3000 requiring an up-front fee of £105.

You might think that you just need to make a claim for nominal damages, to make the point so the business owner, university or whomever. I'm not a lawyer, so I don't know if that would have any impact on your chances of success, but I am a person with some experience of how organisations think, and I know people who've been through this particular mill, and given that often the result of a finding in your favour is only those damages, nominal damages do very little to influence the behaviour of an organisation.

Courts can also impose injunctions, ordering that the organisation cease their discriminatory behaviour, and in some cases they prefer this over damages. Indeed, this can be done without proving that anyone has suffered actual detriment, merely that they would do so if the discrimination continues. In a case where you have simply tried to access a shop and been unable to do so, this is not usual, in my experience (though I'd be happy to hear otherwise). A recent high-profile case, based on the Equality Act but not related to disability, concerned a buy-to-let landlord who instructed an agent not to let to “coloured people” because they left “curry smells” in properties. He was issued an injunction against having such policies. Should he be found to be violating this injunction later, he will be liable to criminal prosecution.

There is one organisation whose remit includes supporting or bringing cases related to discrimination, including disability discrimination. This is the Equality and Human Rights Commission (EHRC), who provide advice for the public and organisations in terms of rights and obligations under various laws, including the Equality Act. However, they do not have a sufficient mandate or, more critically, sufficient resources to act as a general enforcer of the Act. They take up cases of broad applicability, or where the situation is particularly critical and the person allegedly discriminated against doesn't have resources to pursue it, even with legal aid or a conditional fee arrangement (CFA), commonly referred to as “no win, no fee”. It may be cynical of me, but I also tend to think that a case being high-profile, as in the case of the landlord mentioned above, also tends to make it more likely that the EHRC will get involved.

But let's see you have the mental, emotional and financial resources to pursue a county court claim against the organisation that you feel has discriminated, in whatever way. You take them to the county court, the judge finds entirely in your favour, and awards damages; if they were particularly jerkish in their conduct of the case itself, you may even get awarded costs. A friend of mine has recently done just that, being awarded quite reasonable damages – seemingly an absolute success. However, the only thing that stops the owner from continuing to discriminate is the obvious risk of further such legal action. The decision doesn't create a binding precedent on any court, and decisions are not generally reported widely enough for it to even be any sort of persuasive element in future cases. They can be pointed out to other judges in arguments, and that other judge in another case may give them consideration – but of no substantial impact greater than the arguments given by the parties in the case, other than the respect they might give a fellow judge. Of course, I would not advise anyone faced with such legal action to ignore previous cases on the basis that the judge may make a different decision; judges are not known for being capricious.

Not only that, but simply winning in the county court doesn't force the offending party to actually pay you your damages (and costs if you manage to get them). No, you have to wait a while to give them a chance to pay voluntarily, and then go back to court to get the judgement enforced. Then the respondent has a bit of time to provide information to the court about their means, and you sometimes have to go to a bit of fuss to ensure that they have been informed of the need to provide this information. Only once you have ensured this and they haven't responded, or if they do actually respond, can the judge set out enforcement measures to force them to pay – often in instalments.

Then there are cases where organisations are “judgement proof”, referring to a situation where they have so arranged matters such that, even if they lose and are faced with damages, they can legally show themselves unable to pay. For example, if you are suing a limited company, they might have arranged their finances such that very little in the way of assets remain in the hands of the company; in the face of an adverse judgement, they can just have their company declared bankrupt, wind it up, and start up again with a “new” company. There are some handy features in the Equality Act, such as section 110, that allow for liability to be joint and several between a company and its employees, but you have to make sure you invoke these provisions, pay slightly more to make them a co-respondent in the case.

All this is window-dressing, though. We have a situation where the law of the land is such that it is unlawful to discriminate against certain classes of people, where there is a legal duty to make reasonable adjustments for disabled people – and to make them on an anticipatory basis. But the vast majority of the time, this law can only be enforced by the people being discriminated against. Legal aid is not generally available, and conditional fee arrangements are difficult in the small claims track of the county court, as the losing side doesn't generally have to pay the winner's costs – and if the solicitors think the respondent may be judgement-proof, they will not enter into such a no win, no fee arrangement, because it's perfectly plausible that the applicant will get no money at all. When you consider that the groups likely to be making such claims under the equality act, including disabled people, are statistically likely to be economically disadvantaged as well, this is a situation where enforcement ends up being rare. This probably contributes to the strange feeling of victimisation businesses tend to exhibit when a disabled person does have the temerity to actually try to enforce the law.

There is a solution, and we can see the kernel of it already in effect. The EHRC can get involved in cases, even cases without a defined victim of discrimination. They can get courts to impose injunctions to stop discrimination, which is harder for a normal claimant in county court unless there is a reason they will have an ongoing relationship with the respondent. They have skills, and they have resources.

However, as mentioned earlier, they are limited by both their resources and their mandate. They are not a general civil enforcement agency. If we had such an agency, however, they could take complaints from members of the public who have suffered discrimination, investigate, and potentially – with appropriate changes in the law to support them – impose fixed penalties that businesses could pay in preference to going to court, and ending up paying more; a system could be in place to increase these penalties for repeat offences, leading to possibly much stronger penalties in court for the unrepentant. This would enable far more cases of discrimination to be acted upon, making it more normal to suffer such attentions, and creating a stronger incentive to bring behaviour in line with the law.

Such an agency would require resources, but the civil penalties themselves could help fund them. Then disabled people could not be accused of extortion, as they would not benefit directly from enforcement action – though victim payments might be appropriate in some cases, they would be being determined or advised upon by a specialised agency. It wouldn't simply be disabled people versus business – and universities, and hospitals, and government agencies. It would be a specialised, well-resourced agency acting, based on complaints from disabled people, but not being instructed by them.

Surely, if our society, if the UK as a country, is serious about disability discrimination – or indeed any form of discrimination – it shouldn't be up to those who are already disadvantaged to enforce the laws that protect us.

equality act

The Glaring Flaw in the Equality Act

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