Compensation awards and the hierarchy of discrimination

July 26, 2013 at 9:13 pm (civil rights, Disability, Human rights, Jim D, law, LGBT, Racism, reblogged, religion, sexism)

Is justice really blind?

In theory, all forms of legally recognised discrimination (ie discrimination arising from one of the six “protected characteristics”) are equally serious. Many of us have long suspected that in reality, that isn’t the case and that certain forms of discrimination tend to be taken less seriously than others. For instance, while racism is (thankfully) a complete no-no in the media and in most workplaces, sexism (especially in the form of jokes) is still widely tolerated.

In this context, a look at employment tribunal awards for the various forms of discrimination, makes informative and – for me, at least – quite surprising, reading.

Britain’s leading discrimination law specialist Michael Rubenstein, has just published an analysis  (by employment lawyer Innes Clark ) of the Equal Opportunities Review (the ‘EOR‘) annual survey of compensation awards made in discrimination cases, and with their “kind permission” he’s set out the main points, as follows:

By Innes Clarke

The statistics are based on 422 cases either filed by the Employment Tribunal Service in Bury St Edmunds or sent to the EOR by individual lawyers.

The total compensation awarded in the 422 cases was £5,268,597. Discrimination awards are uncapped and the highest award made was £235,825 in the disability discrimination case of Wilebore v Cable & Wireless Worldwide Services Ltd, in which reasonable adjustments were not made for an employee who was returning to work after having treatment for cancer.

The only other award in excess of £100,000 was for £136,592 in an age discrimination case – Dixon v The Croglin Estate Co Limited.

Breakdown of Awards

Of the total amount awarded (£5,268,597), 47% is attributable to awards made for injury to feelings (£2,469,566) with the rest made up of, predominantly, financial loss (i.e. loss of earnings).

The highest awards made for the various categories of discrimination were as follows:-

Protected Characteristic    Highest Award

Age £136,592
Disability £235,825
Race £61,459
Religion & belief £18,600
Sex £81,400
Sexual orientation £36,433

I have set out below the median awards for the various strands of discrimination with the 2011 and 2010 figures for comparison purposes.

Protected Characteristic Median Award (2012) Median Award (2011) Median Award (2010)
Age £7,788▼ £8,000 £7,250
Disability £9,795 £7,646 £8,000
Race £4,500 £4,000 £7,865
Religion & belief £3,000 £1,000 £6,976
Sex £6,789▼ £8,986 £8,000
Sexual orientation £8,000 £4,500 £4,000
All discrimination awards £7,500▼ £7,518 £8,000

Recommendations

An Employment Tribunal can make recommendations as to the steps that the respondent should take to reduce the adverse effect of the discrimination on the claimant. The Tribunal can also make recommendations for the benefit of the wider workforce and not just the particular claimant. In 2012 the Employment Tribunal made recommendations in 30 cases. Of these, 19 included wider recommendations to promote equality in the workplace. The most common wider recommendation was for training to be implemented either on equality or diversity.

It is worth noting that the Government is intending to remove the power of Employment Tribunals to make these wider recommendations which, in my view, is regrettable and appears to be something of a retrograde step.

Private Settlements

It should be borne in mind that the statistics relate to a selection of cases which were decided by the Employment Tribunal and do not take into account the many claims that do not reach a full hearing and which, instead, conclude by way of agreed settlement for undisclosed sums.

**********

Clarke notes that the EOR’s report also contains “some very interesting statistics” on the ‘injury to feelings’ element of discrimination awards and promises a further blog on that, shortly. Look out for it at ‘Michael Rubenstein Presents…’

2 Comments

  1. anonymous cheese said,

    On note, I do feel that the Equality Act 2010 has somewhat made a significant impact on chaging the dynamics of “hierarchial” nature of awards made, the truth is, not many people are aware of their rights. We are yet to see the changes implemented within the legislation so as to give people more rights. But I personally believe that in order to eradicate discrimination of any kind,people should start taking action against sexism or agaist other sorts of discrimination, then like racism we would find their sheer existance unreasonable. The lack of compassion seen against these vulverable groups, seems to question whether providing them with compensation as a result of discrimination is enough and whether the legislators need to toughen up the law and create a seperate legislation for all inequalities … or whether they should remove the barriers between civil and criminal and have a mixture of both?

  2. Mike Killingworth said,

    The last paragraph of Clarke’s article really makes a nonsense of the rest. There is no reason to suppose that the likelihood of the parties settling out of court is the same for each of the “protected characteristics”. What would be of more use than quoting cash values would be equating the awards to the salaries of the complainants – and also comparing them with the awards made in constructive dismissal cases.

    AC seems thoroughly confused. There is a distinction between racism and unlawful racial discrimination. The former is a weapon of political polemic, the latter is something that employers do (or possibly arises out of something they fail to do).

    And why should we “eliminate discrimination of any kind”? People’s feelings are hurt when they fail to get into university, but does AC want to abolish universities or compel them to award places by ballot?

    AC (and not a few others, I fear) may want to live in a world in which a sense of victimhood is all that’s required to hit the jackpot on the slot machine but they should recall that other people who have the same – or even more – “protected characteristics” that they do may also find such a sense of victimhood personally offensive. Still, it may be that AC has a career as an equalities trainer, and uses it to promote the sense of victimhood.

    Many years ago, a race adviser said to me: “nobody wants equality, Mike. Everybody wants power and privilege”. Ain’t that the truth?

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