Should the Equality and Human Rights Commission sue employers?

Few would deny that, despite major reforms, more needs to be done to help tackle workplace discrimination.

Trevor Phillips, in his first major speech as chair of the new Equality and Human Rights Commission (EHRC), has called for the government to introduce the use of “representative actions”. This would involve legal action by a body such as the EHRC or a trade union on behalf of a group of individuals with identical claims.

But would further increasing the threat of litigation to big employers by this means – and, let’s face it, it would be the big employers and public spats that these actions would focus on – improve and speed up the access to justice?

Going further

Representative actions already exist, in a limited form, in the employment sphere. Trade unions or employee representatives can bring claims where there has been a breach of the collective consultation rules in a redundancy or on a transfer of an undertaking. These claims involve unions or employee representatives who have already been given statutory rights that are alleged to have been breached. The EHRC proposal goes further. It wants to step into the shoes of employees to collectively enforce individual rights.

When the Law Commission looked into representative actions, it decided they should only be introduced if there was a clear need.

The EHRC has focused on the subject of equal pay to make its point. It highlights the 44,000-plus claims lodged with the tribunal system, an increase of about 150% on last year. Phillips stated: “Taking an action on behalf of an entire group of such claimants, we – and bodies such as trade unions – will be able to tackle the discrimination inherent in pay systems, and help to reduce the burden of the employment tribunal. Representative actions would provide quicker and more effective access to justice.”

But do the facts support such a radical change?

The facts

The significant growth in equal pay claims does not suggest that employees have been hindered in pursuing such actions. This has been achieved through a variety of means, including strong trade union representation, and an increase in the use of no-win no-fee lawyers.

The proposed procedures may be relevant where there is a group of employees with identical complaints. But the local authority equal pay claims have shown that not all employees want to be represented by the same body, even where there appears to be a common interest.

There have been well-publicised disputes between unions and some of their members. Many employees have been prepared to settle claims based on union advice, while others have wanted to hold out for a better deal. Some who were offered a ‘poor deal’ on union advice ultimately failed in discrimination claims against the GMB. Since then, some have brought negligence claims against the same union.

It’s more likely that representative actions would be limited to dealing with specific legal test case issues.

However, the current procedures allow multiple claims to be conjoined with test cases then being pursued. Procedures have been simplified to save time and cost.

Some of the ‘delays’ in resolving these cases have been due to the need to obtain decisions on key legal issues. This would not be helped by introducing a new style of action.

Key to success

An injection of new, fresh ideas to help stimulate debate and shape reforms in the equality arena is key to successful change. If representative actions in discrimination are to work, they will have to pass the following acid tests. They need to:

  • improve employee protection

  • be introduced only where there is a clear need

  • provide improved access to justice with cheaper and quicker remedies

  • assist the cultural shift to embed equality as a foundation stone of our society

  • have safeguards in-built to ensure they are only used when appropriate.

Whether this can be achieved, however, is now open to debate.

David Walker, employment law partner, Dundas and Wilson

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