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If it is adopted, a European Directive proposed in July 2008 would probably require some changes to UK law. The UK Government issued a consultation document on it. More on proposed directive...
The Government is not persuaded by suggestions (see headings below) that cases should go to employment tribunals, called 'Equality Tribunals', rather than county courts. See below on why the DRC believed employment tribunals should be used. (Government response to the Discrimination Law Review, July 2008, para 6.66ff)
In response to the consultation, the Government has decided against its former idea of all non-employment discrimination cases going to certain designated county courts where a small number of judges would have specialised training. Instead there will be greater emphasis on training all judges in discrimination law. Furthermore, judges should normally be assisted by a lay assessor. (Government response to the Discrimination Law Review, July 2008, para 6.78ff).
The original Government proposals are set out in the Green paper consultation document of June 2007, para 7.13 - 7.30.
In April 2009 the House of Commons Work and Pensions Committee recommended that "the Government introduces an equality tribunal with the single Equality Act, empowered to hear all types of discrimination claims, but with the ability to transfer certain types of case - such as housing or actions against the police - to other courts where appropriate" - para 265, The Equality Bill: how disability equality fits within a single Equality Act (link to parliament.uk).
In comparison with employment cases, very few legal claims on goods facilities and services seem to be brought. The Committee said:
256. A number of submissions highlighted the complexity of the county court rules and cost implications of pursuing claims through county courts, for example the possibility of a claim being listed in the fast or multi-track means that the claimant risks the possibility of considerable costs being awarded if they do not succeed. Ms Casserley of the Discrimination Law Association stressed:
"It is not like employment; you do not fill in a form and send it into the tribunal. You have to apply to a county court, you have to pay money in order to put in your application, then you have to pay more money for them to decide which bit of the county court your case is going to be allocated to. If it is not allocated to what is called the small claims then you risk paying the other side's costs if you lose. For disabled people that is a very significant deterrent in actually bringing those cases. I think there is a very big problem with enforcement."
The Committee says that most submissions advocated an equality tribunal, including the Employers' Forum on Disability and the Federation of Small Businesses.
The Committee also recommends, in para 266, that the Government introduces provision for class/representative actions in goods, facilities and services cases (see on similar suggestions for employment). The Committee believes too that there is a role for the Equality and Human Rights Commission in proactively undertaking formal investigations and bringing strategic cases to improve enforcement - and it should also take a strategic role in monitoring and researching enforcement.
Also the former DRC, in its A Framework for Fairness Response (on archived DRC website) (pages 7-11) believed that the current process for legally challenging discrimination in services denies access to justice. County Courts are expensive for individuals - eg it cost a minimum of £210 to commence proceedings, with additional charges at every stage. Also there is the disincentive that if one loses, one is required to pay the legal costs of the winner in many cases (particularly where cases are allocated away from the small claims court).
All discrimination cases (except pre-16 education) should, said the DRC, be commenced in employment tribunals, which do not have the same disadvantages and where procedures are considerably less complex. The tribunals would be designated 'equality tribunals' where the matter does not relate to employment.
The DRC said that the Government's Green Paper proposals did not address the issue of access to justice. Only a handful of people actually take service providers to court at the moment under the DDA.
The DRC also argued that potential sanctions against service providers should not only provide redress to the individual but also have a deterrent effect. It said that for most services cases the payment is on average about £1000 for injury to feelings. This does not give sufficient incentive to service providers where compliance with the DDA may involve significant expense - eg some physical adjustments. (p.11-12)
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Last updated 12th April, 2010