Abstract
Yes. United Kingdom antidiscrimination law is enforced—albeit primarily by means of private individuals bringing tort-style claims against alleged discriminators under the relevant provisions of the UK’s antidiscrimination legislation rather than by enforcement action initiated by NGOs or public bodies such as the Equality and Human Rights Commission (EHRC).
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Notes
- 1.
For the scope of the 2010 Act, see below.
- 2.
(1999) 29 EHRR 493. The UK is obliged under Article 46 of the ECHR to give effect to judgments of the Court. This international law obligation has significant normative force in the European context.
- 3.
See, e.g., Case C-303/06, Coleman v Attridge Law [2008] IRLR 722. The influence of EU law over UK antidiscrimination law will presumably be cut off when the process of “Brexit” from the EU is completed.
- 4.
This set of statistics from 2012 to 2013 is used as it predates the introduction of tribunal fees in 2013 (see below).
- 5.
In 2012–2013, 17,406 sex discrimination claims, together with 451 maternity/paternity-specific cases, were initiated, compared to 6985 disability claims, 4679 age claims, 2523 race claims, 948 religion or belief claims, and 614 sexual orientation claims. See Ministry of Justice, Tribunal Statistics, Annex C: Management Information on Employment Tribunal Receipts, 2012–15, available at https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-january-to-march-2015.
- 6.
Department of Business Innovation and Skills (2014) (“SETA 2014”), p. 181, Table 5.2.
- 7.
Ibid.
- 8.
According to figures gathered by GQ Employment Law, just 710 out of 3210 discrimination cases that were heard and determined by an employment tribunal were successful in 2014. In contrast, 18,847 out of 30,498 “other” non-discrimination employment law claims succeeded before a tribunal in the same year. However, the figures do not reveal the number of claims that were settled. See “Low Rate of Success for Discrimination Claims,” New Law Journal, 27 Nov 2014. In part, this low success rate may reflect the complexity of discrimination claims and the difficulty in proving that a protected characteristic was a “ground” of unequal treatment. Anecdotal evidence also suggests that a certain proportion of discrimination claims are initiated as a way of putting pressure on employers to settle employment-related disputes which may have at best a tangential relationship with “discrimination” as defined under law; the absence of a cap on damages in discrimination cases, and the extra moral opprobrium associated with discrimination as distinct from other forms of employment actions may encourage this tendency.
- 9.
In 2012, 61% of persons bringing a discrimination claim received “assistance” (broadly defined) on a day-to-day basis with the claim process. See SETA (2014), p. 131, Table 3.14.
- 10.
Costs can be awarded where a claim is deemed to be “vexatious.”
- 11.
SETA (2014), p. 181, Table 5.2. Only 11% go to a full hearing. See p. 184, Table 5.4.
- 12.
There is a paucity of statistics on the volume of non-employment discrimination claims. However, it seems as if 111 such cases were initiated in 2014. See the discussion by Pulley (2015).
- 13.
For details, see the guidance available at https://www.gov.uk/employment-tribunals/make-a-claim.
- 14.
In 2014–2015, a total of 11,224 discrimination claims were initiated in England and Wales, compared to 34,606 in 2012–2013, as mentioned above. More specifically, sex discrimination claims have fallen by 75%; sexual orientation and religion or belief claims by 71% and 66% respectively; race, disability and age claims by 58%, 59% and 61% respectively; and pregnancy and maternity claims by 49%. See Ministry of Justice, Tribunal Statistics, Annex C: Management Information on Employment Tribunal Receipts, 2012–15, Table C.4, available at https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-january-to-march-2015. Evidence from the Advisory, Conciliation and Arbitration Service (ACAS), who play an important role in resolving discrimination claims, suggests that the single most important reason given by claimants for not pursuing their claim was the costs imposed by tribunal fees. See ACAS (2015), pp. 96–98, which suggests that 26% of claimants were deterred by the new fee system.
- 15.
R (Unison) v Lord Chancellor (No 2) [2017] UKSC 51.
- 16.
For an overview of the political debate about the imposition of these fees, see House of Commons Library, Briefing Paper No. 7081, Employment Tribunal Fees , 22 June 2016. The Scottish Government had previously announced that it was going to abolish this fee requirement in Scotland.
- 17.
See the Early Day Motion 382, Budget for Equality and Human Rights Commission, House of Commons Session 2016-7, 21/07/2016, available at https://www.parliament.uk/edm/2016-17/382.
- 18.
Section 149 of the Equality Act 2010; section 75 of the Northern Ireland Act 1998.
- 19.
McColgan (2015), p. 453.
- 20.
See the Fair Employment and Treatment Order (Northern Ireland) 1998.
- 21.
See Government Equalities Office, Mandatory Gender Pay Gap Reporting, Consultation Paper, February 2016, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/504398/GPG_consultation_v8.pdf.
- 22.
See section 139 of the Equality Act 2010: also Igen Ltd & Ors v Wong [2005] EWCA Civ 142.
- 23.
ACAS (2014).
- 24.
See in general O’Cinneide (2007), pp. 141–162.
- 25.
O’Cinneide (2007).
- 26.
O’Cinneide (2007).
- 27.
See, e.g., BBC v Souster [2001] IRLR 150.
- 28.
In 2012, only 5% of discrimination claims were initiated by persons 24 and younger: in contrast, 17% were initiated by persons in the 55–64 age range.
- 29.
In 2012, 73% of initiators of discrimination claims were of “white” ethnicity: in contrast, 90% of British employees are “white”; 13% were of minority religious faith, as compared to 9% of employees; 54% were female, in contrast to 51% of all employees; 44% were members of trade union or staff association, as compared to 27% or so of all employees. See SETA (2014).
- 30.
See EHRC, Pregnancy and Maternity Discrimination Research Findings 21 October 2016, available at https://www.equalityhumanrights.com/en/managing-pregnancy-and-maternity-workplace/pregnancy-and-maternity-discrimination-research-findings.
- 31.
Sections 158–159 of the Equality Act 2010.
- 32.
In 2012, 56% of claims were initiated against private employers and 30% against public sector employers, which compares with 70% and 19% respectively of unfair dismissal claims. (Claims made against voluntary sector employees make up the rest.) SETA (2014), p. 259, Table 8.6.
- 33.
SETA (2014), p. 88.
- 34.
Discriminatory decisions by public authorities can also be overturned by judicial review, with the exception of Acts of Parliament. See, e.g., section 6 Human Rights Act 1998.
- 35.
Section 2 Deregulation Act 2015.
- 36.
Section 119(5)-(6) of the Equality Act 2010.
- 37.
SETA (2014), Tables 5.5 and 5.9, pp. 186 and 190. However, this mean of £18,000 is notably higher than other types of employment awards: for example, by way of contrast, £11,000 is the mean in unfair dismissal actions.
- 38.
See Cox (2015).
- 39.
Ministry of Justice, Tribunal and Gender Recognition Certificate Statistics Quarterly, April–June 2016, Employment Tribunal Tables E.1–E.11, available at https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-april-to-june-2016.
- 40.
See generally McCrudden et al. (2004), pp. 363–415.
- 41.
See, e.g., Daily Telegraph, “David Cameron’s Senior Adviser Steve Hilton Suggests UK Should Abolish Maternity Leave,” 28 July 2011, http://www.telegraph.co.uk/news/politics/david-cameron/8667058/David-Camerons-senior-adviser-Steve-Hilton-suggests-UK-should-abolish-maternity-leave.html.
- 42.
See, e.g., Bull v Hall [2013] UKSC 73.
- 43.
See, e.g., sections 39–83 Equality Act 2010.
- 44.
Sch.9, para 4(3) Equality Act 2010, and equivalent provisions in the Northern Irish legislation.
- 45.
[2013] UKSC 59. This restriction may not conform to the requirements of EU law. See UK National Report 2015–2016, EU Network of Discrimination Law Experts.
- 46.
[2011] UKSC 40.
- 47.
See generally 28-31, 32-38, 84-107160-187.
- 48.
See, e.g., Schedules 3, 5, 9, 11, 16 and 23 of the Equality Act 2010.
- 49.
As also noted above, the sharp decrease in the number of claims brought following the introduction of tribunal fees particularly impacted on the numbers of sex discrimination claims—but this down-turn has also impacted across the full range of discrimination claims.
- 50.
See, e.g., Bull v Hall [2013] UKSC 73.
- 51.
McColgan (2009), pp. 1–29.
- 52.
780 sex discrimination claims received a full hearing, with 290 (37%) being successful. 84 sexual orientation claims were heard, with 22 (26%) being successful. 830 disability claims were heard, with 190 (23%) being successful. 410 age claims were heard, with 90 (22%) being successful. 147 religion or belief claims were heard, with 27 (18%) being successful. 950 race claims were heard, with 150 (16%) being successful. See Employment Tribunals and EAT Statistics, 2010–2011 (London: HM Courts & Tribunals Service, 2011), p. 8. This reflects a set annual pattern. Aston et al. (2006).
- 53.
See Renton (2013).
- 54.
Ministry of Justice, Tribunal and Gender Recognition Certificate Statistics Quarterly, April–June 2016, Employment Tribunal Tables E.6–E.11, available at https://www.gov.uk/government/statistics/tribunals-and-gender-recognition-certificate-statistics-quarterly-april-to-june-2016.
- 55.
See, e.g., sections 158-9 of the Equality Act 2010.
- 56.
London Underground Ltd v Edwards (No 2) [1997] IRLR 157.
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O’Cinneide, C. (2018). United Kingdom. In: Mercat-Bruns, M., Oppenheimer, D., Sartorius, C. (eds) Comparative Perspectives on the Enforcement and Effectiveness of Antidiscrimination Law. Ius Comparatum - Global Studies in Comparative Law, vol 28. Springer, Cham. https://doi.org/10.1007/978-3-319-90068-1_27
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