Disability discrimination: Access to justice at the House of Lords

17 September 2015

Rachel 1

                                                            Rachel Crasnow QC

Last Tuesday I gave evidence to the House of Lords Select committee on the Equality Act (2010) and Disability on behalf of the Bar Council, alongside the Law Society, the Discrimination Law Association and the Law Centres Network.The Committee wanted to know how well the Equality Act 2010 is being enforced.

This was a great opportunity to demonstrate how the Bar Council serves the public interest; in particular in evaluating the administration of justice and examining if there is fair access to justice for all. Acting on behalf of the most vulnerable members of society means we have valuable expertise on the impact of this legislation, and I was able to express concern over what I believe is an over reliance on individual enforcement. It also enabled us to observe that the complexity of rights now consolidated and enlarged by the Equality Act 2010 make it even more important that individuals have access to specialist legal representation. 

We kept our response to the Committee's questions focussed on problems relating to enforcement, and all respondents took the same approach. We agreed there is little that needs to be changed with the law itself, the focus instead was on the issue of funding and fees. With a 70 per cent drop in claims made to employment tribunals since the introduction of fees by the Coalition in 2013 it is hard to argue there is no link. It is clear to me, as well as to many members of the Employment Lawyers Bar Association that fees have had a 'significant chilling effect' on access to justice for poorer members of society.

Between us, the witnesses explained to the Lords how access has effectively been restricted.

Even just to appear as a litigant in person at a full hearing can cost up to £1,200 in fees, which does not even cover the cost of any legal advice or representation. In addition, claimants in the County Court risk paying costs. The option of judicial mediation, designed to avoid costly court hearings, is also problematic as it commands a £600 fee which is non-refundable if it fails. This leaves claimants of limited means having to take a gamble; should they cut their losses or go for broke? An award of £2,000 would be a great deal of money to a lot of claimants, but to make such a claim would involve risking almost as much. This explanation helped make it clear to the Committee why so few potential claimants are prepared to put themselves through the courts, despite how important that process is in driving changes in the way that people with disabilities are treated. There was also some interest when I shared my view that since the introduction of fees and reductions in the number of claims, employers in particular have become more bullish in defending all claims. Defendants are under less pressure to settle than before and have access to much greater resources than the vast majority of complainants. It really should come as no surprise that many people who have suffered discrimination and have a legitimate claim do not feel it something they can pursue.

Through our written and oral submissions, we distilled our 'asks' down to 5. Firstly, I argued that claims made under the Equality Act 2010 brought in the County Court should qualify as personal injury claims. This would mean qualified one way costs shifting (QOCS) could apply, providing claimants with protection against costs. Secondly, I asked that the Employment Tribunal fees regime should be revoked; the proportion of successful claims has remained the same following their introduction, meaning they have not achieved their aim of screening out unmeritorious or vexatious claims. We also proposed that the Civil Legal Advice Telephone Gateway should be reviewed in line with the recent Public Law Project report: Keys to the Gateway  . The fourth 'ask' was for increased funding for judicial training on disability discrimination law and for statutory codes of practice to be updated and augmented so that courts and tribunals can make better use of the excellent guidance they provide. Finally, we made the obvious but necessary point that public funding should be reinstated to provide cost effective, early advice to those who need support in upholding their rights.  

There was a general consensus amongst all those giving evidence on a number of our proposals, particularly for the idea that the Government should retender the discrimination contract to allow face-to-face advice, increase funding of local level education and enforcement, and encourage the Equality and Human Rights Commission to review its policy of not supporting first instance cases.

The protections offered by the disability discrimination provisions of the Equality Act are largely dependent on the ability of disabled people to bring claims against their employers, either through the courts or less formal mechanisms. It is clear that we are in financially straightened times and that public funding is restricted, but there is little point in having the legislation if it cannot properly be used. Our most contentious ask of all, that more money be spent on access to justice, seems to be a legitimate exception to the current regime.

A full copy of the Bar Council's written submission can be found  here and a transcript of the evidence session is available  here.