Sexual harassment in the City, wearing the veil or ageism in the workplace — these are among the hottest topics before our judges for decision. Discrimination is a growth industry in the law: the scope has widened from sex and race to include disability, religion and — most recently — age. In all, more than 200,000 claims were lodged in employment tribunals in 2005-06.
The judge at the apex of the system that decides these controversial cases is Mr Justice Elias, 59, president of the Employment Appeal Tribunal. More than 1,700 appeals from tribunals were lodged with the EAT in 2005-06 and almost one in four is a discrimination claim, including equal-pay challenges.
But the judge dismisses the notion that discrimination is as rife as when the laws came in 25 years ago. “I’m sure that the law has had some impact in changing people’s attitudes — certainly people on the ground, employers, are very much aware of the need not to discriminate and there’s quite a lot of training provided. It’s a good thing that people are more conscious,” he says. “It may be that it starts as a purely defensive mechanism, by employers concerned not to disobey the law, and perhaps not to make large payments, but I like to think that it’s also a recognition that this is how they should behave and that there is much greater appreciation of the unfairness discrimination creates.”
But awareness of the law, and the removal of compensation limits for discrimination claims, has meant an inexorable increase in claims. By the time appeals reached the EAT, delays were up to one year. As a result, the judges have instituted reforms to tackle backlogs. The most significant, Elias says, is that single judges now sift appeals and reject cases with no reasonable prospect. About one in three are struck out at this stage, of which one third appeal and one third of those succeed. “It became plain that a lot of cases were going to full appeal, taking quite a lot of money and time, and there really was nothing in them. People can become obsessed with cases and I genuinely think it’s kinder to strike them out early, if that’s the proper thing to do, and let them get on with their lives.” Cases now come within months.
A second reform is the preliminary hearing before cases go to the full-blown appeal. This usually involves just one party, and a response from the other, but no opportunity for the respondent to make representations. The case, or part of it, might be struck out at this preliminary stage — about half are.
All this speeds the workings of the appeal tribunal. But like tribunals generally, it is struggling with the growing complexity of the law — and the increasing numbers of points lawyers can raise. People are mostly legally represented, often with funds from trade unions or with help from the Employment Lawyers Advice Scheme. There is no legal aid. High awards have raised the stakes and people prefer not to risk a case without a lawyer. “Cases before tribunals,” Elias says, are “getting more complex. You may find in a single claim sex/race discrimination, then victimisation — and unfair dismissal.”
He agrees that the system has moved a long way from its original aim to be a simple and swift way of resolving workplace disputes that ordinary people could use. “But I think it would be extremely difficult to turn the clock back. You can still, as an individual, bring a case before tribunals and the appeal tribunal in a relatively straightforward case and chairmen are in general very good at making a litigant feel at home.”
Meanwhile, the law itself has developed. He makes the distinction between direct discrimination — simply where someone is treated less favourably, “because they are a woman, or black or whatever” — and the less obvious indirect discrimination over which most cases now arise. “It’s a difficult thing to apply. It may be that an employer imposes a barrier and more men than women, for instance, can jump it — such as the requirement for an engineering degree, which has a disparate impact on women, because I don’t mind betting that more men than women have engineering degrees. If it can be justified, that’s fine. If not, then it’s unlawful.”
The ageism laws are likely to bring yet more claims but the new law differs in that discrimination is allowed if there is a justification for it. “One can see, at least in the abstract, how there might be a greater justification for saying, yes, we are benefiting the old here, but the other group will be old in due course; you can’t say, this will benefit the whites and it will benefit the blacks in due course.”
The big debate now is to what extent there should be positive discrimination. Elias carefully avoids that territory as “very controversial” and cases are likely to come before him. But his view of the current law is clear. “Underpinning direct discrimination is the notion of human dignity — the idea that people are respected for who you are, not what colour or sex you are. I think that’s so fundamental that it’s right that it applies to everyone and that the law protects everyone.”
- Mr Justice Elias delivered the 2006 Employment Lawyers’ Association lecture on November 8 on Discrimination: Some Problems of Definition and Proof
Key facts
- Likes music, reading, sports — “I used to play a lot of cricket and rugby” — Welsh rugby supporter
