Remedies and enforcement

• Author: Vickers, Lucy
• Pages: 50-58

50

6 REMEDIES AND ENFORCEMENT

6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,

Article 9 Directive 2000/78)

a) Available procedures for enforcing the principle of equal treatment

In the UK, the following procedures exist for enforcing the principle of equal t reatment.

The procedures are the same for employment in the private and public sectors.

The UK anti-discrimination legislation (EqA, Part 9; RRO Articles 51-54; DDA Sections 17A

and 25; FETO Articles 38-40; SOR Regulations 34-38; NI Age Regs Part 6) includes

provisions enabling individuals who consider they have been discriminated against contrary

to the Act/Order/Regulations to bring legal proceedings; complaint s concerning

employment-related discrimination (public sector an d private sector) can be mad e to the

employment tribunal (industrial tribunal or Fair Employment Tribunal in NI), and

complaints concerning any other unlawful discrimination (by public sector or private sector

bodies) can be made to the civil court (c ounty court in England, Wale s and NI and sheriff

court in Scotland). The court/tribunal procedures are available to any person who considers

s/he has suffered unlawful discrimination.

Employment/industrial tribunals were established to consider the full range of employment

disputes. Each tribunal has a legally qualified chair and two lay members, one broadly

representing employ ers and the other employees. In the county/sheriff court, cases are

decided by a single judge; for cases under the EqA, however, the judge must generally be

assisted by two lay assessors, people selected from a list maintained by the Sec retary of

State, unless the parties agree that the judge should sit without assessors (Section 114).

Decisions of tribunals and courts are binding, subject to any successful appeal by the losing

party.

The EHRC and ECNI have powers to investigate whether or not a person has committed an

unlawful act under the equality acts.144

In terms of alternative dispute resolution procedures, all claims to the employment tribunal

for unfair dismissal or unlawful discrimination are referred to the Advisory Conciliation and

Arbitration Service ( ACAS), or in NI the Labour Relations Agen cy, wh ich have statutory

duties to promote settlements. Claimants in GB must contact ACAS with a view to

determining whether ea rly conciliat ion is possible. Settlements agreed through ACAS or

the Labour Relations Agency are binding on the parties. Employment cases may also, with

the agreement of the parties, be selected for judicial mediation which is also available in

the county courts. Criminal proceedings are not available.

b) Barriers and other deterrents faced by litigants seeking redress

Research consistently reveals that the majority of people who consider they have been

victims of unlawful discrimination or harassment are very slow t o seek legal r edress. The

main reasons are generally lack of confidence that they will be believed or fear that they

will face some form of retaliation or victimisation.145 Individuals who are confident and

determined enough to consider bringing legal proceedings face a number of barriers. There

are statutory time limits for the initiation of complaints of discrimination (three months for

employment-related cases and six months in the county/sheriff court, though the court or

tribunal may consider an application submitted outside these time limits if in all of the

circumstances it considers that it is just and equitable to do so).

144 Equality Act 2006 s 20; Northern Ireland Act 1998 Sched 9 para 10.

145 Aston J, Hill D, Tackey N. (2006), The experience of claimants in race discrimination employment tribunal

Cases, Department of Trade and Industry, Employment Relations Research Series, ERRS55.