Bach Commission Inquiry Into Access to Justice

Bach Commission Inquiry into Access to Justice

Evidence from the Equality and Diversity Forum

Introduction

The Equality and Diversity Forum (EDF) is a network of national organisations committed to equal opportunities, social justice, good community relations, respect for human rights andan end todiscrimination based on age, disability, gender and gender identity, race, religionor belief, and sexual orientation.[1]Further information about our work is available at

Our members represent some of the most disadvantaged groups throughout the UK and so we will comment on how limitations to access to justice will affect them.

My name is Gay Moon, I am the EDF Legal Fellow and I am representing the Equality and Diversity Forum in preparing this response which has been agreed by our members. My email address is

Current state of access to justice

Our three biggest concerns about access to justice are –

a)Restrictions on access to justice lead to important legal rights, such as those enshrined in the Equality Act 2010, becoming devalued, ignored and being seen as merely theoretical;

b)Restrictions on access to justice are likely to increase costs for the State; and

c)Restrictions on access to justice mean that people who cannot afford to assert their rights will have little alternative to taking matters into their own hands, for example, by taking industrial or some other form of direct action.

We will set out below a number of specific areas of concern.

Tribunal fees – EDF strongly opposes fees being charged for access to the Employment Tribunals (ETs) and the Employment Appeal Tribunal (EAT). These tribunals were set up to prevent industrial unrest and provide an easily accessible method for resolving industrial disputes so as to prevent employees resorting to direct action or taking matters into their own hands. If a fee is to be charged that is not inappropriate we believe that it would have to be set at a purely nominal level, and in that case the cost of collection would barely justify its imposition.

EDF considers that there can be no question but that the introduction of ET fees has radically reduced the number of cases being brought in the ETs (and also consequently in the EAT). This cannot be adequately explained by suggesting that this represents the exclusion of vexatious and trivial cases. Those who have just lost or are losing their jobs are less likely to be able to afford to pay such fees. EDF considers that far too little consideration has been given to the consequences that will flow if employees cannot access legal redress reasonably easily.

The Ministry of Justice’s Tribunals and Gender Recognition Certificate statistics quarterly: January to March 2015, comments -

The trend in single claims had been gradually declining for the last five years, but the rate of decline increased in October to December 2013. The fall in receipts for Employment Tribunals seen from October to December 2013 coincides with the introduction of Employment Tribunal fees in July 2013.[2]

In relation to discrimination cases specifically, claimants have to pay the higher level of fees to access the ETs – £1,200 in total. It is clear that the number of discrimination cases has declined following the introduction of fees. For example, by April to June 2014, age discrimination cases were down by 26%, disability discrimination cases by 47%, race discrimination cases by 60%, religion or belief cases by 63%, sex discrimination by 91% and sexual orientation by 60%.[3]

We consider that account needs to be taken of the EC Directives[4] which require Member States to put in place provisions to ensure that ‘judicial procedures for the enforcement of obligations under this directive are available to all persons who consider themselves wronged by failure to apply the principle of equal treatment to them...’ The imposition of ET/EAT fees means that this provision is not complied with.

Additionally, these same European Directives provide for accessibility of judicial procedures and the need for Member States to make provision for an ‘effective, proportionate and dissuasive’ sanction. Sanctions that are dependent on payment of fees at these levels are unlikely to be considered ‘effective’.

Charging a higher fee – or the highest fee – to those who believe they have been discriminated against adds another administrative rule to further marginalise those people who have a protected characteristic and deterring them from using a service. We consider that there can be no justification for imposing higher charges for such cases, particularly given that these cases are often brought by people who have suffered significant harm in the workplace, for example, harassment or sexual abuse. We think that discrimination cases should be exempt from the payment of fees.

There are no provisions in place for refunds of ET fees although costs orders can be made which can include refunds of fees; however, we consider that there is good evidence that even if such orders are made there is no guarantee that the claimant will receive payment.[5]

We do not consider that the remission system provides justification for adverse impact of the imposition of fees on the various ‘equality groups’ identified in the Equality Act 2010. Many claimants, especially those with on-going discrimination claims and who are still employed, will not be entitled to any form of remission. Those who have been dismissed or whose employment is at an end may also find it difficult to satisfy the conditions for having fees remitted. Time limits for presenting claims are very short; in most cases three months from the time of the incident or discrimination in question. Many claimants will not have the means to pay the initial fees whilst they are, for example, waiting to see if they are entitled to state benefits. Other claimants will not be entitled to benefits for some months and therefore will not satisfy the rules on remission of fees before the three-month time limits expire. This will prevent many worthwhile cases being brought in the ET.

County Court discrimination cases concerning Goods, Facilities and Services – So far as we know there are no statistics on the numbers of discrimination cases arising in the County Court and there is certainly no historical record of these. It is therefore impossible to know to what extent the number of discrimination cases may have decreased in the County Courts as a reaction to the level of fees charged. As with the ET cases, we would anticipate that any increase in fees will negatively affect people from protected groups who are more likely to be in the lower income groups. In particular, we would draw attention to the fact that many of these cases will include a claim for injury to feelings which are unlikely to be sufficient to enable a claimant to recover their costs. This will act as a considerable disincentive to bringing a case.

The impact of change to the fee charging systems for the Courts and Tribunals has fallen disproportionately on the vulnerable, the low paid and those from traditionally disadvantaged groups. Access to justice is becoming a right for those with money, and legal rights such as those put in place by the Equality Act 2010 are becoming largely theoretical for many whom they were intended to benefit.

Access to legal advice – since 2010 we have seen the reduction in sources of legal advice whether from Law centres, Citizens Advice, solicitors or other advice centres as the effects of austerity have been worked out.[6]

In theory LASPO permits legal aid to be granted for discrimination cases in the Employment Tribunal. However, the administration of this right has made it excessively difficult to use. The Legal Aid Agency has allowed only a very limited number of such matter starts for each Legal Aid provider. The imposition of fees for ETs has caused a diminution in opportunities for employment work in solicitors’ practices. As a result, finding a solicitor who can do this work is very difficult. Either they are not available locally or a local solicitor with a practice has used up all the available matter starts.

A similar problem has occurred in relation the right under LASPO for assistance in relation to trafficked workers.

Transforming our justice system

In the current financial situation it seems unlikely that we will be able to return to previous levels of legal aid no matter how desirable this would be. We are therefore making some alternative suggestions.

We are suggesting –

a)Improving regulatory systems,

b)Making greater use of the Public Sector Equality Duty (the equality duty), and

c)Giving the judiciary greater powers to intervene and cross examine parties and their witnesses.

One alternative route to achieving justice may be to look at ways of strengthening our regulatory system. In the case of discrimination this would entail giving greater powers to the Equality and Human Rights Commission (EHRC). This type of solution would require proper and appropriate funding so that it was not dogged by backlogs such as those experienced in Canada and the US. We have in mind a more extensive use of powers to investigate, powers to bring class or representative actions which would in turn bring a wider range of benefits.

Within the discrimination field, the equality duty when properly applied within the public sector can help public bodies to deliver their services fairly and more accurately, which will benefit everyone. It has been publicly labelled as both a luxury and red tape and this has undoubtedly undermined its success in achieving equality in the public sector. In our view it is a sensible tool for modern Government which is particularly important in times of austerity.

The Government’s Equality Strategy 2010 acknowledged that ‘Failure to tackle discrimination and provide equal opportunities, harms individuals, weakens our society and costs our economy’.[7] It concludes that ‘Equality is not an add-on, but an integral part of this Government’s commitment to build a stronger economy and fairer society’.[8] This is still true today and the proper application of the equality duty provides an effective and appropriate means to implement this.

Although the equality duty is an important tool for improving access to justice, the framework and the way that it operates could be further improved. The focus in considering improvements to strengthen the operation of the duty should be on the duty’s primary role as a tool for improving the way that organisations work in the long term.

The equality duty is not a panacea for all the shortcomings of society; it is part of a tool kit which also needs leadership, skills and knowledge within organisations. Public bodies need information about their users/communities if they are to properly target their work. This is as true for government as for other bodies. We regret that the Government has chosen to enact much weaker and vaguer specific duties in England compared to those operating in Scotland and Wales. In our view public bodies would be helped by having clearer guidance from specific duties.

The current equality duty requirements need to be steadily built upon to establish a smarter way of working. The key elements of what is needed are:

Positive and visible leadership from elected and management leaders that focuses on goals and outcomes that will advance equality of opportunity.
Decision making that takes robust but proportionate account of the likely impact of a decision on the three goals of the equality duty.
Clearer guidance about specific duty regulations for England.
Action to make sure that organisations have the capacity to implement the equality duty effectively. This capacity would usually need to include staff understanding and awareness, up to date information to aid consideration of equality issues and policy and decision making processes that enable equality implications to be considered before decisions are made.
Clear equality outcomes and objectives that an organisation commits itself to achieve and that inform its business planning. These should reflect priorities that are based on evidence and community engagement.
Active engagement with the service users, residents and employees, particularly those from protected groups. This is likely to lead to better quality and more appropriate decision making.
Active use of qualitative and quantitative evidence to inform understanding of the likely impact of policy, service and employment decisions. Collecting information is not an end in itself but must inform action. Although there are challenges involved in identifying some evidence (such as on the cumulative impact of a series of fiscal and spending decisions) much of the information that public bodies need should be routinely available to public bodies that understand and are in touch with their communities.
Openness and transparency, including clear and publicly available information about progress a public body is making towards the equality duty’s three goals.
Regulatory regimes that have equality and diversity embedded in their assessment criteria and are assessed rigorously.

The Courts are already having to deal with an increased number of people representing themselves. This brings a range of problems including an inequality of arms and longer hearing times. We suggest ensuring that judges have greater powers to intervene and cross-examine the parties and their witnesses.

The Employment Tribunals were set up to prevent industrial unrest and provide an easily accessible method for resolving industrial disputes so as to prevent employees resorting to direct action or taking matters into their own hands. They were set up to provide a more informal system of justice and whilst they have become more legalistic they do still provide a less formal system with specialist expertise in employment and discrimination matters. We value the use of lay members representing employers and workers in grounding the tribunals in practical experience. Whilst we note the suggestion of specialist discrimination tribunals/courts which could improve the access to discrimination remedies in respect of goods, facilities and services, we would not wish to lose the accessibility and expertise currently held in the Employment Tribunal system. We would not want to see them simply incorporated into the County Court system.

In respect of procedural issues in the Employment Tribunals we very much regret the removal of the right to use the Statutory Questionnaire Procedure and the ability of the tribunals to make wider recommendations to employers in order to prevent the recurrence of discrimination. We would like to see these rights re-instated.

There are a number of suggestions that have been made about increasing technology to the Court system as well as the possibility of an on-line court. Whilst we welcome these proposed innovations we consider that there are significant risks for some sections of the population particularly those with a protected characteristic. Consequently, people with the greatest need for support may not get the help they need. The use of internet based solutions will particularly disadvantage those with specific disabilities (particularly learning or communications limitations), those whose first language is not English as well as those who do not have a computer or understand how to operate one (this is likely to reduce over time). Additionally, reliable broadband access is still not 100% in England and Wales although this is likely to have been achieved by 2021.

Access to Justice is becoming a right for those with money, and legal rights, such as those put in place by the Equality Act 2010, are becoming largely theoretical for many whom they were intended to benefit.

Equality and Diversity Forum, May 2016

1-6 Tavistock Square, London WC1H 9NA

Tel + 44 (0) 20 303 31454, email , website

Registered charity number 1135357 and company number 06464749

Annex 1

Equality and Diversity Forum Members

Action on Hearing Loss

Age UK

British Humanist Association

British Institute of Human Rights

Children’s Rights Alliance for England (CRAE)

Citizens Advice

Disability Rights UK

Discrimination Law Association

End Violence Against Women Coalition

Equality Challenge Unit

EREN – The English RegionAPPG enquiry on refugeess Equality and Human Rights Network

Fawcett Society

Friends, Families and Travellers

Gender Identity Research and Education Society (GIRES)

Law Centres Network

Mind

National AIDS Trust

National Alliance of Women’s Organisations (NAWO)

Press for Change

Race on the Agenda (ROTA)

RNIB

Royal National Institute of Blind People

Runnymede Trust

Scope

Stonewall

Trades Union Congress (TUC)

UKREN (UK Race in Europe Network)

UNISON

Women’s Budget Group

Women’s Resource Centre

Other signatories

Inclusion London

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[1] A list of EDF members is attached as annex 1

[2]

[3] See Equal Opportunities Review, issue no 251, September 2014.

[4] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation and Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (recast).

[5]Research into enforcement of Employment Tribunal awards in England and Wales, Ministry of Justice, May 2009 showed that 39% of awards were not paid also BIS study Payment of Tribunal Awards - 2013 Study - IFF Research, 2013 at and Cost of a hollow victory, CAB, November 2013, at

[6] See for example, p85-86.

[7]The Equality Strategy - Building a Fairer Britain, HM Government, December 2010, p8.

[8] The Equality Strategy - Building a Fairer Britain, HM Government, December 2010, p24.