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Can you explain the new employment tribunal power to make recommendations under the Equality Act 2010?

Posted on 15th September 2010
New legislation

The Equality Act 2010 introduces a power for employment tribunals to make recommendations for the benefit of the wider workforce. A tribunal's power to make recommendations was limited to the steps the respondent should take to reduce the adverse effect of the discrimination on the claimant - but this power could only be used if the claimant remained an employee. In over 70% of cases the claimant was no longer employed and the tribunal could not make recommendations.

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Simon Quantrill Simon
Quantrill
Managing Partner Telephone: 01473 688100
The Equality Act's explanatory notes state that a tribunal could recommend, for example, that the respondent employer:

  • Introduces an equal opportunities policy.
  • Ensures its harassment policy is more effectively implemented.
  • Sets up a review panel to deal with equal opportunities, harassment and grievances.
  • Re-trains staff.
  • Makes public its selection criteria used for staff transfer or promotion.
The power only applies to discrimination cases and not equal pay claims.

What is the penalty if an employer fails to implement a recommendation?

Surprisingly there is none because recommendations are not binding. However, an employer's failure to comply with a recommendation could be used as evidence to support subsequent similar discrimination claims. It is anticipated therefore that claimants will try to identify an employer's previous failures to implement recommendations and rely upon this in support of their own claim. This may be achieved by including relevant questions in a claimant's discrimination questionnaire. In appropriate cases the tribunal may then be asked to draw an adverse inference against the employer in favour of the claimant in the current case.

Example

Clive is being harassed at work because of his disability. He raises a grievance but his head of department takes no action. Clive brings a claim to the employment tribunal and wins. The tribunal makes an award of compensation and also makes recommendations that the employer puts in place an anti-harassment policy and trains all managers about how it works in practice.

Before Clive's case was heard at the tribunal he resigns. Under the old legislation, the tribunal could not make recommendations as Clive had left his employment. Now, even though Clive no longer works at the respondent's, the tribunal can make recommendations and the employer is still required to act on them for the benefit of other employees in the company. If the respondent fails to implement the recommendations, this fact can potentially be used against the respondent in future discrimination cases.

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