Although compensation remains the most popular form of remedy in discrimination claims, Employment Tribunals also have the power to make recommendations to employers about the steps they should take to reduce any adverse effect of discrimination on either the claimant, or any other party. Recommendations are especially useful where the employee still works for the same employer, to ensure that discrimination stops once they return to work after proceedings are over.
Prior to the Equality Act 2010 coming into force, recommendations could only be made if they aimed to reduce the adverse effect of the discrimination on the employee who brought the claim. However, in line with the new act, tribunals may now make recommendations that benefit the wider workforce and not just the claimant, as was demonstrated in the case of Lycée Français Charles de Gaulle v Delambre.
The employer, a French school in London, had refused to promote a 34-year-old employee (who remained employed at the school), on the grounds of her age. She had also been subject to victimisation when she queried the refusal with them.
The tribunal found that she had suffered age discrimination and victimisation, and awarded her compensation. They also found that the school had provided no evidence that they intended to remedy their ignorance of the law, and therefore concluded that a change was required within their organisation to address the effects of the discrimination suffered by the employee. The tribunal made three specific recommendations:
- By 10 March 2010, the tribunal’s merits and remedy decisions were to be circulated by the school to each member of the governing board and senior management team, for them to read and understand their full meaning;
- By the end of June 2010, the school was to engage an appropriately qualified HR professional to review its disciplinary, grievance, equality and recruitment policies and to amend or redraft them where necessary to ensure that they complied with UK employment law. The HR adviser was to be given the tribunal’s full merits and remedy decisions in order to complete their task;
- Within six months of September 2010, the school was to undertake a programme of formal equality and diversity training, specifically addressing recruitment and selection procedures, starting with the board of governors and highest management levels and cascading down through the entire organisation.
The school appealed, on the grounds that the recommendations made were too vague and impractical. They also stated that the recommendations should apply to the employee only and therefore were inappropriate, as they went beyond the scope of alleviating the adverse effect on her. The Employment Appeal Tribunal (EAT) disagreed and reiterated that, further to the Equality Act 2010, the tribunal has extremely wide discretion in terms of making recommendations. The EAT also held that the tribunal can be justified in making recommendations that apply across the board, as long as they reduce the adverse effect of discrimination on the employee. As a result, the EAT found that the tribunal was entitled to:
- Ensure that the people in charge of the school were made fully aware of their actions and that these had been strongly condemned, by requiring them to circulate the judgment;
- Request a review of the school’s policies, as the tribunal proceedings had demonstrated that several of these policies contained failings;
- Order equality and diversity training to take place, as such training does not take a long time, is not onerous and can easily start from the top of the school’s organisation.
The outcome of this case clearly demonstrates the tribunal’s broad-ranging ability to make recommendations in discrimination cases, as well as the narrow ability to interfere with their discretion on appeal. This power also suggests that tribunals may issue recommendations, even when the employee no longer works for the employer, as recommendations can now relate to the whole workforce, rather than just one specific employee.
Therefore, employees should ensure that they include a request for recommendations as part of the remedies they seek in their discrimination claim, as the aim of recommendations is to ensure that the employer does not continue to act in a discriminatory manner, even if the employee is no longer with them.
From the employer’s perpective, recommendations not only represent additional costs in terms of implementation, they also come with the adverse publicity of a discrimination claim being brought against them which will become public knowledge. In order to avoid potential discrimination claims being brought in the first place, and to avoid the risk of a tribunal making recommendations against them, employers may want to bear the above case in mind and ensure that staff are kept informed and trained on the Equality Act 2010. Another way of avoiding this is to ensure that policies are kept up to date with the current legislation.
Lyons Davidson’s Employment department can offer to review and advise on internal policies. For more information, contact firstname.lastname@example.org.