Equality Bill

My Lords, I certainly agree with the noble Lord, Lord Hunt, that the outcome not the process is important in respect of this particular clause as it is in most of the rest of the Bill. Outcomes affect the lives of people and the working conditions of employees. Clause 123 is necessary because it sets out the remedies available to the tribunal in discrimination cases. These are a declaration regarding the rights of the complainant and/or the respondent, compensation, including damages for injury to feelings, and recommendations. All of those remedies are available under existing discrimination law, except for the power to make wider recommendations, which we are introducing through this Bill. The noble Lord asked about enforcing wider recommendations. This power is not about penalising employers: it is about enabling them to comply with discrimination legislation in the future. In the case of recommendations that benefit an individual claimant, it is appropriate to order more compensation to be paid to the claimant for an employer’s failure to comply with a recommendation. However, where the recommendation benefits the wider workforce rather than just the individual claimant, to award further compensation to the claimant for that failure would clearly amount to a windfall. The noble Lord also asked whether there had been any other changes to the recommendation power other than the extension. The only difference is that the enforcement mechanism has been amended so as not to apply wider recommendations. Instead, they can be taken into account in any future cases involving the same employer. I hope that that makes sense. If it does not, I will write to the noble Lord. We recognise that strong and effective enforcement is necessary to make a reality of legal rights. That is why we are extending the power of tribunals to make recommendations, so that recommendations can be made for the benefit of the wider workforce as well as the individual claimant. Allowing tribunals to make recommendations that benefit the wider workforce will help employers to understand what they need to do to comply with the law and reduce the risk of future discrimination against other employees. It should in consequence help to tackle systemic discrimination and therefore reduce the number of claims which individuals have to bring before a tribunal. That is a very important outcome. Currently, in more than 70 per cent of cases brought before a tribunal a claimant is no longer working for the employer at the time of the hearing. Therefore, in a large majority of cases, tribunals cannot make a recommendation, because it would not benefit the claimant. This clause ensures that the wider workforce can benefit when an individual claimant brings a successful discrimination case, by allowing a recommendation to be made regardless of whether the individual claimant is still employed by that employer. Employment tribunal chairs have significant expertise in discrimination law cases. Having heard the evidence in a case, they will be in a position to assess whether the discriminatory action was a one-off incident or evidence of systemic discrimination. This will enable them to recommend the type of action that it may be appropriate for the respondent to take. When making a recommendation an employment tribunal chair will need to set out clearly the steps a company must take in order to comply with that recommendation as well as a timeframe in which those steps should reasonably be undertaken. This is made clear in subsection (3) of the clause. Examples of recommendations which tribunals currently make include the following: to introduce an equal opportunities policy; to provide training to managers; or to introduce transparent and fair promotion criteria. We expect recommendations under the extended power to be broadly similar. The extended recommendation power will be used in conjunction with the existing remedies available to the employment tribunal, such as damages. However, this clause makes it clear that in cases of unintentional indirect discrimination the tribunal may award damages only after considering whether any other order would dispose of the case. That is because damages may not be the most appropriate remedy in cases where an employer inadvertently operates a discriminatory procedure.