03 September 2014
Call for House of Lords to Save the Employment Tribunals’ Recommendations Power
A successful claimant in a discrimination claim is, of course, entitled to financial compensation. In addition, an individual can also ask the Tribunal to make recommendations to remove or reduce discriminatory outcomes or behaviours. Those recommendations can be made in respect of the individual claimant or “any other person”, i.e. the wider workforce. A typical example of the types of recommendation that a Tribunal can make relate to a review of an employer’s equality policy or diversity training.
However, the Tribunal’s power to make recommendations beyond the individual claimant is about to be abolished as part of the government’s drive to cut back on “red tape” and “bureaucracy”. The changes to law are in clause 2 of the Deregulation Bill, which is currently before the House of Lords. If passed, this would be a retrograde step in the on-going battle for equality in the workplace.
We asked the Tribunal to use its power to make wide recommendations to tremendous success this week in the case of PC Carol Howard v The Commissioner of Police of the Metropolis. PC Howard, a black female officer, was successful in her claims for race and sex discrimination and victimisation.
The Tribunal held, among other things, that she was treated less favourably because of the Respondent’s negative perception of her as a black woman. In addition, the Tribunal found that there was a policy within the Metropolitan Police to delete (or instruct deletion of) any findings of discrimination in the internal grievance procedure, known as the Fairness at Work procedure.
In PC Howard’s case, there was evidence that draft versions of the grievance outcome had in fact upheld her complaints of discrimination, but the grievance investigator had been instructed to delete those findings because of the Employment Tribunal process. There was also evidence before the Tribunal that this “policy of deletion” had also been used in at least two other cases.
This week, the Tribunal made some significant recommendations including an independent, external review of all internal discrimination complaints within the Metropolitan Police since January 2009, together with a review of the current Fairness at Work procedure. Following a review, the Tribunal has recommended that the report be published and consulted upon extensively before engaging a relevant expert to implement the suggestions made in the report.
The impact of the recommendations is very wide and, in effect, the Employment Tribunal is calling for a complete overhaul of the way in which the Metropolitan Police deals with complaints of discrimination from its own officers. The Fairness at Work procedure is widely and commonly used and affects every officer within the force. This recommendation is, therefore, far-reaching and could lead to a tangible organisational change.
Had this case been before the Tribunal later this year, however, the Tribunal may no longer have retained the power to make such recommendations and any remedy would then have been limited to PC Howard herself.
When the government first proposed removal of the Tribunals' power to make wider recommendations, in response to its consultation, 12% of respondents were in favour of repealing the wider recommendations provisions whereas 79% were opposed.
The government stated that “[v]ery few of the responses, both those opposed to and those in favour of repeal, have offered significant quantifiable evidence or specific evidence based on actual situations and outcomes, to support their views”. Well, the case of PC Howard is clear evidence as to why the power to make wide recommendations should not be abolished.
The reality is that the use of the wider recommendations power is exceptional and rare. But when it is deployed, it can make a significant and important impact on organisational discrimination as in the case of PC Howard.
Slater and Gordon Employment Lawyer, Kiran Daurka, will be asking the House of Lords to consider the case of PC Howard carefully before it passes clause 2 of the Deregulation Bill as the power to make wider recommendations continues to encourage and nurture wholesale cultural change in the appropriate case. To suggest that the power is red-tape fails to understand the aim underlying its inclusion in the Equality Act.
If you consider that you are being discriminated against at work because of your race; please call freephone 0800 916 9060 and ask to speak with a Race Discrimination Solicitor or contact us online.
Kiran Daurka is an Employment Solicitor specialising in race discrimination law at Slater and Gordon in London.
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