The main focus this month is on our annual compensation awards survey. We also have an interesting article from Darren Newman in response to a feature on religion or belief that appeared in EOR 199.
Part 1 of our annual survey covers sex and race discrimination, with an analysis of the overall trends. It reveals an increase in the number of large awards that tribunals are prepared to make – in 2009 there were 14 awards over £100,000, more than double the previous year (six in 2008) and over three times the number in 2007 (four). The largest award came to over £3/4 million, with disability discrimination once again attracting the highest amount. There was also a sex discrimination case where almost £1/2 million was awarded, and a race discrimination award of £373,186. Although the average and the median in sex and race discrimination cases went down in 2009, these very high awards demonstrate that the stakes are high for employers who discriminate.
The overall average, covering all jurisdictions, increased once again in 2009, and now stands at £20,910. The median, however, at £7,806, decreased to nearer its 2007 level. But due to the very high awards, the total amount awarded by tribunals increased substantially, with employers having to pay out more than £8 million in 2009.
The average and median awarded for injury to feelings decreased in 2009, reflecting the higher proportion of awards falling within the low Vento band. Two-thirds of all awards were within the low band. The amount most often awarded was £5,000, with this occurring in 31 cases (9%).
Views on religious belief discrimination are almost as varied as the beliefs themselves. In EOR 199, Sam Webster of the Christian Institute argued that a misunderstanding of the nature of religious belief, particularly Christianity, has resulted in courts and tribunals failing to give full effect to the protection of the discrimination legislation in this area. In response to that article, Darren Newman, an independent commentator, argues that, far from religious beliefs being “trumped” by other discrimination rights, interventions by special interest groups are in effect seeking special consideration to be given to discriminatory actions motivated by religious belief. Newman argues that the current approach taken by the tribunals, whereby an individual’s expression of their religion is treated as indirect discrimination capable of being justified, is the only sensible way to resolve conflicting discrimination rights.
Also on religion or belief, we report the Court of Appeal’s decision (in McFarlane) to refuse to hear an appeal against a finding that there was no unlawful discrimination against a counsellor who was dismissed for refusing to counsel samesex couples on sexual matters because of his religious beliefs. In his judgment, Lord Justice Laws condemned calls for special courts to hear claims of religious discrimination.
In his Diary, Michael Rubenstein outlines the discrimination law issues that will need to be addressed by the new coalition Government. One area in the Equality Bill that is unlikely to be implemented is the socioeconomic duty. Gender pay gap reporting is another area where the Conservatives took a different view from the provisions in the Equality Bill and, in Michael Rubenstein’s opinion, the most likely outcome is that agreement will be sought, though the EHRC, on a voluntary reporting system.
The Conservatives had also committed to extending the right to request flexible working to all parents of children under the age of 18, and this has indeed appeared in the coalition Government’s programme for government.
In the Courts includes the Court of Appeal decision in Homer v Chief Constable of West Yorkshire Police, where it was held that a requirement for employees to have a law degree in order to be graded at the top grade for legal adviser did not place those aged between 60 and 65 at a “particular disadvantage”. It is argued, by Michael Rubenstein, that there is a fundamental problem with the Court of Appeal’s reasoning, in that it looks at the cause of the indirect discrimination (ie nearing retirement age), whereas the definition of indirect discrimination does not require a finding of causation. Rubenstein’s view is that it is not necessary to show why people in a particular age group were particularly disadvantaged; all that the law requires is that there is a provision, criterion or practice that places a specific group at a particular disadvantage.
Subscribers to EOR Online can read the full text of all the articles mentioned above as well as our usual news, diary and case reports in Issue 201.
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