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
|Religion & belief||£18,600|
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)|
|Religion & belief||£3,000▲||£1,000||£6,976|
|All discrimination awards||£7,500▼||£7,518||£8,000|
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.
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…’