AG Sharpston’s Opinion: Prohibiting Employees From Wearing Religious Signs Or Apparel Is Discrimination

Bougnaoui and anor v Micropole SA; 13 July 2016

At the end of May, Advocate General Kokott in the Belgium case of Achbita and anor v G4S Secure Solutions NV, expressed the view that an employer was not directly discriminating in banning an employee from wearing an Islamic headscarf in the workplace, and that while the measure could be indirectly discriminatory, it could potentially be justified in pursuance of their policy of religious and ideological neutrality. This might be thought to be consistent with the judgment of the ECHR in SAS v France[2014] EqLR 590 in which any interference with rights to private life under Art 8 ECHR, to religion under Art 9 or to non-discrimination under Art 14 by banning the veil in public was found to be justified.

A different analysis is proffered by Advocate General Sharpston who has delivered her Opinion on a referral to the ECJ from the Cour d’Appel de Paris in the case of Bougnaoui and anor v Micropole SA. The first question is whether  dismissing an Islamic employee for wearing her headscarf at work, contrary to specific instructions, is directly discriminatory, and if so whether it can be  defended under Article 4(1) of the EU Equal Treatment Framework Directive (No.2000/78), as being a  ‘genuine and determining occupational requirement’?

The basis for Microple’s decision to dismiss Ms  Bougnaoui was that a client had found her wearing of a headscarf to be embarrassing to a number of their employees. It was argued that there was a genuine and determining occupational requirement that Ms Bougnaoui not wear the religious apparel, and in light of her refusal to comply, they were justified in dismissing her.

Having considered the Strasbourg case law and the European legislation, AG Sharpston has taken the view that Ms Bougnaoui’s dismissal amounted to direct discrimination on the grounds of religion or belief. Could Micropole then turn to Article 4(1) to defend this dismissal?

AG Sharpston noted that recital 23 of the Directive states that the derogation should apply only ‘in very limited circumstances’. The EU case law provides that this must be interpreted strictly, i.e. only where it is absolutely necessary in order to undertake the professional activity in question. AG Sharpston cites two examples to demonstrate. First, a male Sikh employee, in a post requiring protective headgear, may not be able to insist on wearing his turban. Secondly, a female Muslim working with dangerous factory machinery cannot insist on wearing attire that would give rise to safety concerns. Beyond that, AG Sharpston found it hard to envisage any other scenarios where the requirement is absolutely necessary.

It follows, in AG Sharpston’s view, that the mere commercial interests of a business, its profit margins or customer satisfaction will not suffice. Micropole should not succeed in justifying their actions under Article 4(1). To interpret the Article as Micropole have sought to do would risk ‘normalising’ the derogation which is to be applied in only the most limited of circumstances.

AG Sharpston then went on to consider, in case she was wrong on direct discrimination, whether Micropole’s actions amounted to indirect discrimination. If so, could they be objectively justified as a legitimate aim and the means of achieving that aim are appropriate and necessary (under Article 2(2)(b))?

Here, AG Sharpston considered, it could be argued that the interest of the employer’s business could constitute a legitimate aim. The freedom to carry on business is not, however, an absolute right. It is subject to limitations imposed by the right to equal treatment. These two protected rights – the right to carry on a business and the right to manifest one’s religion – are potentially in conflict, as was the case here. It is then a question of proportionality.

There are many factors which will affect whether a requirement is proportionate. AG Sharpston takes the view that, in the vast majority of cases, a proportionate accommodation can be found. As a last resort, however, the business interest in generating maximum profit should give way to the employee’s right to manifest her religious belief. Micropole’s discrimination in this case could, therefore, not be justified as a proportionate aim

AG Sharpston ended her Opinion by drawing attention to the ‘insidiousness of the argument, “but we need to do X because otherwise our customers won’t like it.” Where the customer’s attitude may itself be indicative of prejudice based on one of the “prohibited factors”, such as religion, it seems to me particularly dangerous to excuse the employer from compliance with an equal treatment requirement in order to pander to that prejudice.’

The ECJ is due to hear this matter along with Achbita and anor v G4S Secure Solutions NV towards the end of the year.

Author: Rebecca Tuck, Old Square Chambers. Rebecca’s main area of practice is employment and discrimination law. She is recommended for employment law in Chambers and Partners.

 Rebecca Tuck

Challenging stereotypical assumptions: age discrimination and student loans

By Dee Masters of Cloisters.

The Court of Session has recently handed down a decision which highlights the importance of public bodies reassessing assumptions concerning older people so as to ensure that they are not acting in a way which is discriminatory.

In Scotland, student loans, which cover living expenses during periods of study, are only available to people aged 50 to 54 if there is evidence that the student intends to enter employment after completion of the course. There is no requirement to consider future employment plans where a person is under 50. Once a person reaches 55, there is no entitlement to a student loan at all. These rules are set out in the Education (Student Loans) Scotland Regulations 2007 (“2007 Regulations”).

In R v (on the application of Hunter) v Student Awards Agency for Scotland and others [2016] CSOH 71, a 56 year old student challenged a decision to refuse her application for a student loan. She argued that the 2007 Regulations infringed Article 14 of the European Convention on Human Rights. This article states that there should be no discrimination on grounds such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The parties agreed that “other status” included age and that the 2007 Regulations were prima facie discriminatory on the grounds of age. The battleground in the case was simply whether there was a valid justification defence.

Legitimate aim

No evidence was provided to the Court as to the rationale for excluding eligibility to students over 55 when the 2007 Regulations were initially formulated. However, a number of ex post facto justifications were advanced. All but one were rejected by the Court.

  • A desire to encourage young people to enter the workforce.

This was rejected by the Court on the basis that the stated purpose of the student loans system was to ensure greater access to further education so as to improve the skills of the workforce and this was inconsistent with the purported, narrower aim of simply encouraging younger people to enter the workforce.

  • A need to ensure that student loans were repaid, which was an obligation that only arose once the student started employment.

This was rejected by the Court on the basis that the state pension age had been increased to 67 so there was no reason to believe that older people would not repay their student loans by entering the workforce. Importantly, the Court also noted that if this were the aim then it could have been achieved in a more proportionate way, namely requiring evidence that students over 55 intended to enter employment after completion of the course in the same was as it was required for people aged 50 to 54. Since this “safety valve” existed for people aged 50 to 54, it tended to suggest that this was not a genuine aim for restricting eligibility for people aged 55 and over.

Proportionality

The only aim which the Court was prepared to accept as being legitimate and genuine was the need to distribute finite resources in an equitable way. The Court further accepted that an upper age limit could have been a valid means of achieving this aim. However, the respondents ultimately failed on the basis that there was no credible evidence that the cost of the student loan scheme would have increased, should eligibility not have been limited to under 55’s, in a way which made the restriction itself proportionate. In particular, the Court was dismissive of statistical evidence which had been provided to the Equality and Human Rights Commission in an effort to justify the upper age limit commenting that it proceeded on the basis of assumptions which were questionable.

Moreover, the Court concluded that even if a legitimate aim existed for the age restriction, there would have a more proportionate means of achieving it than simply denying eligibility to all people aged 55 and over. On this point, the Court appears to have in mind that the students aged 55 and over could simply have been required to provide evidence that they intended to enter employment after completion of the course.

Conclusion

This case is a powerful example of why organisations that rely on age based rules need to actively grapple with their justification. It is all too common for outdated assumptions about older people to guide decisions concerning their treatment. No doubt, when formulating the 2007 Regulations, policy makers were influenced by stereotypical assumptions that people over 55 are not committed or interested in paid work hence limiting eligibility. However, demographics are rapidly changing and the workforce is getting much older. Historic assumptions about older people are often no longer valid and this means re-evaluating discriminatory practices so as to ensure that they can be justified.

Author’s Bio

Dee is ranked in both Chambers and Partners and the Legal 500 as a leading employment barrister. She combines specialist knowledge in all areas of discrimination law, especially age discrimination and equal pay, with expertise in the court room.

Transgender toilets

From Michael Rubenstein’s Diary column, Issue 268 (June 2016) of Equal Opportunities Review. For more information on EOR including details on how to subscribe, click here.

I am in somewhat of a dispute with some of my feminist friends. They are older women and, like Germaine Greer and the columnist Janice Turner, they are unhappy about the prominence that has been given recently to transgender issues. If I understand their feelings correctly, they see this as a phenomenon that has captured media attention but is essentially a distraction from the unsolved issues faced by women, such as unequal pay and under-representation in the institutions of power, harassment and violence against women, lack of affordable childcare, and the threat to women’s autonomy posed by religious fundamentalism, to name a few. These older women have paid their dues as women. They have suffered sex discrimination from childhood. They do not accept that a biologically-born man becomes a woman merely as a matter of choice.

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Bullying at work: what’s the bottom line?

Nick Fry

By Nick Fry, of Bindmans LLP. First posted here on 16th March 2016.

Many of my clients are surprised to hear that there is no law against ‘bullying’ at work and ‘bullying’ is not defined in any employment law statutes. I tend to follow up with questions like, ‘what kind of bullying are you experiencing?’ and ‘why do you think you are being bullied?’ to investigate whether there is a potential claim under existing laws.

If the bullying is related to one of the Equality Act 2010’s nine protected characteristics (race, sex, disability, etc.) or related to whistle-blowing then it may amount to discrimination or unlawful detriment and you could claim compensation in the Employment Tribunal. In certain limited circumstances it can be appropriate to resign in response to being bullied and then claim constructive unfair dismissal. However, if the bullying isn’t discriminatory or related to whistle-blowing (or some other unlawful reason), and it is not advisable to resign, then the only legal route left open is likely to be the Protection from Harassment Act 1997.

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Recent decisions and current employment cases before the European Courts

IMG_1911 JPG blog pic

 

Notes for a talk by Michael Rubenstein, first given on 21 May 2016 at the European Employment Lawyers Association Conference, held in Prague. A full presentation of this talk will be included in a forthcoming issue of Equal Opportunities Review.

Working time

  1. Sobczyszyn v Podstawowa, C-178/15, CJEU – pending

Is an employee entitled to paid annual leave in a year in which they have taken sick leave?

  1. Maschek v Magistratsdirektion der Stadt Wien, C-341/15, CJEU – pending

Is an employee who has terminated their own employment entitled to pay in lieu of untaken holiday entitlement?

  1. Greenfield v The Care Bureau Ltd, C-219/14, CJEU 11 November 2015

Accrued leave does not need to be recalculated retrospectively if working hours are increased.

  1. Federación de Servicios Privados del sindicator Comisiones Obreras v Tyco Integrated Security, C-266/14, CJEU 10 September 2015

Time spent travelling from and to home from different customers on a route determined by the employer is working time

  1. M’Bye v Stiftelsen Fossumkollektivet, E-5/25 – EFTA Court 16 December 2015

Dismissal for refusing to accept average weekly working time of 84 hours in a 7-7 rotation was not in breach of the Working Time Directive.

  1. 6. European Commission v Ireland, C-87/14, CJEU 9 July 2015

Training time for junior hospital doctors is not working time because the doctors are not at the employer’s disposal.

  1. Ville de Nivelles v Matzak, C-518/15, CJEU – pending

Is on-call time for firefighters “working time” where they are on call at home but have a duty to respond within eight minutes?

  1. Perez Retamero v TNT Express Worldwide, C-97/16, CJEU – pending

Definition of “self-employed driver” for purposes of the derogation from the Working Time Directive for Road Transport Workers 2002/15.

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Smashing the Class Ceiling: Investigating the impact of social class on recruitment and promotion opportunities

By Isabel de Souza, of Kingsley Napley. First posted here on 4th May 2016.

From Shaw’s “Pygmalion” to E4’s “Made in Chelsea”, some would argue that social class is a deeply and irrevocably entrenched element of British society. But is that really the case? And if so, what are the implications for those at the “lower” end of the class spectrum?

The “Poshness Test” Policy

According to a report published by the Social Mobility & Child Poverty Commission (“A qualitative evaluation of non-educational barriers to the elite professions”), 70% of the 45,000 best jobs in the country are awarded to applicants from private or selective schools. Bearing in mind that 89% of children graduate from comprehensive schools, 7% from independent schools and 4% from grammar schools, it seems apparent that applicants from poorer socioeconomic backgrounds are bumping against a societal “class ceiling”, unable to break through into the jobs and opportunities that should be available to the upper echelons of talent, not just the “upper class” of society.
The report states that social origins can be used to predict future earnings, even when other factors, such as educational qualifications, job tenure and training are controlled.

Alan Milburn, former Labour cabinet minister and chair of the commission has declared that, “Young people with working-class backgrounds are being systematically locked out of top jobs. Elite firms seem to require applicants to pass a “poshness test” to gain entry… Inevitably that ends up excluding youngsters who have the right sort of grades and abilities but whose parents do not have the right sort of bank balances.”

Even where individuals from less privileged socioeconomic backgrounds are able to overcome the societal hurdles and access elite professions, they frequently fail to achieve the same level of success as their “upper class” counterparts.

Me, Myself and I: Affinity bias and social identity theory in the workplace

But do these dispiriting statistics mean that employers are actively discriminating against “working class” applicants and employees? Not necessarily. Or so Henri Tajfel and John Turner would have us believe. Tajfel and Turner developed social identity theory, the concept that a person’s sense of who they are is based on their group membership(s). They claim that we sort people into categories and adopt the social norms of the groups to which we have subscribed. We then compare our groups with other competing groups. As our confidence and self-esteem are inextricably linked with our group memberships, we tend to enhance the benefits of our own groups and focus on the negative aspects of other groups. This leads to prejudice and discrimination. Affinity bias is another driver for socioeconomic discrimination. It is an unconscious bias which causes us to favour individuals whose background and attributes are similar to our own. The role of these unconscious biases may well perpetuate a workplace dominated by individuals from privileged socioeconomic backgrounds as employers proceed to hire and promote in their own image.

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Highlights from the April/ May edition of Equal Opportunities Review

Our features this month include the thoughts of an employment judge on the role of tribunals in discrimination cases, and a discussion by Rachel Crasnow QC of some of the policy issues arising from the shared parental leave provisions. Our case studies cover mental health, race and LGBT issues.

Women in the film industry

The head of research at the European Women’s Audiovisual Network (EWA) looks at the barriers to women directors, in particular the allocation of funds, pointing out that an “astonishing” 84% of public funds went to male directors, despite the fact that women comprise 44% of graduates from fi lm schools. She argues that urgent action is needed, including targets backed by incentives. The EWA recommends that a 40% share of public funding goes to women.

Justice in discrimination claims

Employment Judge James Tayler argues that employment tribunals have a vital role to play in eliminating discrimination, but that there are also duties on parties and representatives to ensure that cases are dealt with proportionately. He identifies that lengthy and costly hearings are a problem, and recognises the difficulty in keeping claims focused.

However, he finds it unacceptable to simply bewail the fact that it is impossible to prevent discrimination claims losing focus. He reminds parties and representatives of their duty to deal with cases in ways that “are proportionate to the complexity and importance of the issues, avoiding delay and saving expense”. He recognises the role of the tribunal too, particularly in dealing with the evidence, and criticises the conflation that has developed between evidence needed to draw inferences and the burden of proof.

Kent Fire and Rescue Service: mental health

The fire service is traditionally male-dominated and firefighters are expected to “prove themselves” in action. Mental ill-health has to some extent been regarded as a weakness, and Kent Fire and Rescue Service (KFRS) found a high level of self-stigmatisation. However, by raising awareness of mental health issues, and taking a holistic approach to physical and mental wellbeing, KFRS has changed how mental ill-health is regarded. Many employees have committed to studying for a level 2 certificate in awareness of mental health problems, and increasing numbers of staff have participated in dementia awareness training and have become “Dementia friends”. Staff have also become more willing to disclose mental health problems of their own and within their family.

Warwickshire and West Mercia Police: increasing BAME representation

Against a background of Government publication of “diversity profiles” of police forces in England and Wales, and a finding that no force has ethnic minority representation proportionate to it population, Warwickshire and West Mercia Police forces have successfully put in place initiatives to increase recruitment of BAME police officers and staff. Although not yet proportionate to its population, the forces – which have formed a Strategic Alliance to deliver police services jointly in their areas – have increased the

Accenture: ‘mobilising’ its straight allies

In Stonewall’s Workplace Index survey 2016, some 94% of Accenture’s lesbian, gay, bisexual and transgender employees agreed that the culture at Accenture is inclusive of LGBT people. This is to some degree down to Accenture’s renewed emphasis on the role of straight allies at the workplace. It started its straight allies programme in 2012, but in 2015 it launched “mobilised allies”. New terms of reference were published for the ally role. “Mobilised allies” are expected to be a visible, vocalised opponent of prejudice and discrimination and be able to provide a safe and non-judgmental point of contact for LGBT employees who may want support. The number of straight allies increased from 700 to 2,000 from June 2015 to February this year.

Discrimination case law

We report 12 discrimination cases this month, including Peninsula Business Services Ltd v Donaldson, which concerned a salary-sacrifice childcare voucher scheme. The EAT held that this amounted to “remuneration” and therefore refusal to continue the scheme during maternity leave was held not to be discrimination.

Other issues covered include guidance on the correct approach to indirect discrimination, and the duty on employment tribunals to make reasonable adjustments.

Diary: Menopause and disability

In his diary this month, Michael Rubenstein leads with a discussion of the effect of the menopause on some women at work, and explains how changes to the way we understand disability discrimination could provide legal protection for women who are not reasonably supported during the menopause.

He stresses that the menopause is not in itself a disability but part of the natural aging process, but also that it is clear that for some women the effect of the menopause can “hinder their full and effective participation at work”, a condition that can last for four to eight years. If such symptoms can be brought within the definition of disability under the Equality Act, employers will be under a duty to make reasonable adjustments.

This content and more is available to subscribers to Equal Opportunities Review (EOR) in print and online at www.eordirect.co.uk.  For more information or to subscribe, contact augusta@rubensteinpublishing.com.

Justice in discrimination claims: the duties of representatives, parties and the employment tribunal (by Judge James Tayler)

Many discrimination cases are lengthy and costly. Employment Judge James Tayler argues that tribunals have a vital role to play in eliminating discrimination and that there are duties on the tribunal, representatives and parties to ensure such cases are dealt with proportionately.

This article is based on a presentation given by Employment Judge James Tayler (London Central) at the Industrial Law Society on 25 February 2015. The original presentation will be available from the ILS (opens in new window).

Discrimination complaints matter a great deal to those who believe that they have been victims of unlawful discrimination and those against whom allegations of discrimination are made, and indeed, society as a whole. The importance of discrimination claims was emphasised by Lord Steyn in the oft-quoted Anyanwu v South Bank Students’ Union [2001] IRLR 305 (see EOR 97), at para 24:

“Discrimination cases are generally fact-sensitive, and their proper determination is always vital in our pluralistic society. In this field perhaps more than any other, the bias in favour of a claim being examined on the merits or demerits of its particular facts is a matter of high public interest.”

While there are few who would disagree with the propositions that unlawful discrimination remains a significant problem and that the determination of discrimination complaints is of great importance, there is a risk that those who work in this area can become case‑hardened. This may be because there are too many claims that reach lengthy and costly hearings in which the claimant alleges that he has been treated unfairly for many years, by many different people, but is able to say little more than “I cannot see how my treatment can have been anything other than discrimination”, without there being evidence from which an inference of discrimination could be drawn.

The fact that such claims reach hearings may, in part, explain the relatively poor rate of success for discrimination claims at final hearings. Take, for example, race discrimination: of those claims that went to a final hearing in the financial year 2013/14, 15% were successful as opposed to 42% for unfair dismissal; in 2014/15, the figures were 16% and 48%; in the first quarter of 2015/16, it was 21% as opposed to 42%; and in Q2, 15% as opposed to 33%. The statistics, however, do not establish that discrimination is no longer a significant problem.

For example, one only need to consider the underrepresentation of those with certain protected characteristics in the upper echelons of most sectors in society to appreciate the ongoing effects of discrimination. For example, in February 2015 only 23.5% of board members of FTSE 100 companies were women.1 (Note that this increased to 25% by the end of 2015, as reported in the Davies Review five-year summary (see EOR 264).)

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Menopause and disability

It is well-known that the menopause can lead to substantial changes to the health of some women and that this can affect their job performance and/or their attendance at work. Yet until now no legal obligation on employers to make adjustments for this has been clearly established. In my view, as I explain below, changes to the way we understand disability discrimination now have the potential to provide a legal remedy if women are not reasonably supported during the menopause.

The menopause is certainly not a disability. It is a part of the natural ageing process for women, usually between the ages of 45 and 55. It may, however, produce symptoms such as hot flushes, fatigue, poor concentration, palpitations, anxiety attacks, urinary problems, heavy periods, sleep disturbance, irritability and mood disturbance. The British Occupational Health Research Foundation commissioned researchers at the University of Nottingham to explore women’s experience of working through the menopause. This research, published in 2010 (opens in new window), reported that nearly half of the women surveyed found it somewhat or fairly difficult to cope with work during menopausal transition.

The Equality Act 2010 defines a disability as existing where there is an impairment having “a substantial and long-term adverse effect on ability to carry out normal day-to-day activities”. The change in recent years has been the focus, as a result of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), on the effect of the impairment on professional life. Discrimination on grounds of “disability” is prohibited by the EU Framework Employment Equality Directive 2000/78, but the Directive contains no definition of “disability”. However, CRPD was applied by the Court of Justice of the European Union in the Ring case (HK Danmark, acting on behalf of Ring v Dansk almennyttigt Boligselskab, see EOR 236) to hold that the Directive’s prohibition covers “a limitation which results in particular from physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers, and the limitation is a long-term one”. This interpretation has been regarded as binding on UK courts and tribunals. In theKaltoft case (Fag og Arbejde (on behalf of Kaltoft) v Kommunernes Landsforening (on behalf of the Municipality of Billund), see EOR 255), the Court of Justice added that it was sufficient to meet the definition of disability that there is a “hindrance” to the exercise of a professional activity. It is also well-established that the particular cause of an impairment is not relevant to whether it is to be regarded as disabling.

It seems clear that conditions such as poor concentration, poor memory, fatigue and irritability can hinder the full and effective participation at work of some menopausal women. It is normal for these symptoms produced by hormonal changes to last from four to eight years, so the criterion of the impairment being “long‑term”, defined in the Equality Act 2010 as “likely to last for at least 12 months”, should also be satisfied.

If women experiencing menopausal symptoms of sufficient degree are to be classified as having a disability for the purposes of the Equality Act 2010, the most important implication is that this will impose a duty of reasonable adjustment on their employer. The TUC, in its guidance for union representatives (opens in new window), points out that the symptoms of the menopause can be made worse by the working environment. In particular, high workplace temperatures and poor ventilation can cause problems. It suggests a number of ways in which employers can support and assist women going through the menopause, including that “risk assessments should consider the specific needs of menopausal women and ensure that the working environment will not make their symptoms worse. Issues that need looking at include temperature and ventilation. The assessments should also address welfare issues such as toilet facilities and access to cold water.”

The approach of the trade unions until now has mainly been that the menopause is an occupational health issue to be tackled by safety representatives. In my view, as noted, it also poses reasonable adjustment issues under disability discrimination legislation, and changes to the working environment such as those set out above could be regarded as adjustments that may be reasonable. So could more flexible working hours for women experiencing menopausal symptoms affecting their work performance. That said, an employer only has a duty to make a reasonable adjustment if they know, or could reasonably be expected to know, that a person has a disability and is likely to be placed at a disadvantage by a provision, criterion or practice, or by a physical feature. Research suggests that women are often not comfortable disclosing difficulties arising out of the menopause to their managers, especially if those managers are younger than them or are male. The TUC recommends that other options for discussion than the line manager should be available, such as through human resources or a welfare officer.

Menopause and disability is published in EOR 267, May 2016 and can also be read in full here.

Compensation awards 2014: awards on the rise

An interesting finding in this year’s analysis of compensation awards in discrimination cases is that, despite the huge drop in the number of claims since the tribunal fees were introduced in July 2013, the number of awards made for discrimination has remained the same. We cover 355 awards in our survey, the same number as last year. Although all the cases included involve awards made in 2014, some of the cases will have been started before the fees were introduced – often decisions are made on liability and a separate hearing is scheduled for remedies at a future date. This means some cases can take many months to be resolved. Also, a small number of the cases will have been on appeal, so they too will have commenced proceedings before the fees applied. Although we can tell from the case numbers if a claim was made in 2013, we have no way of knowing whether this was before or after the fees came into effect.

Other information that is not available from the judgments is whether or not the claimant applied for fee remission. What we do know, however, is that there were very few decisions where reimbursement of fees was expressly ordered by the tribunal. This is surprising, given the Government’s Guidance on fees, which states that the “general position” is that “the respondent will be ordered to reimburse you”. This occurred in just 32 cases – 9% of all claims where compensation was awarded. The overall level of successful fee remission applications is around 3% – from which we can assume that around 97% of claimants in our discrimination compensation cases have paid their own fees. This is, of course, minus those cases that started before the fees became payable, and although that is not quantifiable, it is safe to say that it would not account for the remaining 88% of claimants who neither had fee remission nor their fees reimbursed. Another striking aspect of our findings is the increase in the level of awards. The total amount awarded, in the same number of cases as in 2013, has increased by 77% – over £7½ million in 2014. We have seen such large amounts in previous years, but this has always been due to exceptionally large seven-figure awards. There were no such awards in 2014 – the highest was just over £½ million. There was, however, an increase in the number with just three the previous year.

Our findings show an upward trend across all awards – the average and median has increased overall and in almost all jurisdictions. The only two showing a decline are sexual orientation and religion or belief, which had only three and two awards respectively. The average level of injury to feelings has moved from the low Vento band to the middle band. There has been a big jump in the number of high-level awards, from two to 13, and middle band awards were made in almost half of cases (47%).

In this first part, as well as an analysis of the overall picture, we detail the findings in relation to sex, maternity or pregnancy and race discrimination. Other jurisdictions – disability, age, sexual orientation, religion or belief and cases involving more than one protected characteristic – will be covered in part 2, along with appeals and recommendations. We will also include the first two cases where compensation was awarded in cases involving marriage and civil partnership and transgender.

Compensation awards 2014: part 1 is published in EOR 259, July 2015 and can also be read in full here.