.
What do victims of discrimination actually want? The answers may surprise you, as it really isn’t about the money
The most frequent thing clients who have suffered discrimination tell me is that they don’t want their experience to happen to other people. It may surprise readers of certain tabloids but people are generally not after money. Far more common is the desire to hold a discriminator to account. They may simply feel that something should be done. They may want an apology, an explanation or acknowledgement of how they were treated or that it amounted to discrimination. They may want a practical change, such as making adaptations in the case of diability discrimination, or training staff.
Many people find it difficult to express what they actually want. Often the individual who has suffered discrimination is also trying to address their own feelings of embarrassment, humiliation, outrage or insult. One of my first tasks is, therefore, to advise on the remedies available for unlawful discrimination.
The Equality Act 2010
The Equality Act gives an individual the right to bring a civil claim in the county court or employment tribunal. As I often explain to clients, there are no ‘discrimination police’. Discrimination by employers and service providers is not (usually) a crime. The job of tackling discrimination falls on the shoulders of individuals who have already suffered disadvantage.
It is true the Equality and Human Rights Commission (EHRC) does have extensive legal powers but its limited resources are used sparingly in individual cases and generally only once cases get to an appeal.
Specific remedies
What can the court or tribunal offer, assuming the client succeeds in proving an act of unlawful discrimination?
The starting point is that the court’s normal remedy is an award of compensation, limited to what a successful claimant has actually lost. Despite the popular press, windfalls are not available in the courts and a claimant has to prove losses before a defendant will be ordered to pay them.
Any actual loss arising from discrimination can, therefore, be claimed. In serious cases, this could include damages for psychiatric injury. However, in most discrimination cases (especially in access to services), there is simply no monetary loss.
The critical provision in s119(4) of the Equality Act, therefore, allows for damages to include ‘compensation for injured feelings’ which covers those hardto-quantify but very real notions of upset, embarrassment, humiliation, insult, inconvenience, frustration, etc. County court awards typically range from about £1,500 to £10,000.
However, money is not the only remedy. Section 119(2) gives the county court surprisingly wide powers to grant any remedy which could be granted by the High Court in proceedings in tort or on a claim for judicial review. These include declarations and injunctions, which may be of considerable importance in discrimination cases.
‘As I often explain to clients, there are no “discrimination police”. The job of tackling it falls on the shoulders of the individuals.’
Injunctions
A couple of examples show how the courts can help to eliminate discrimination in practice.
In Hutchings v D’Cruz claim no WD300805, 26 August 2003, Watford County Court granted an injunction requiring a Chinese restaurant to admit a blind man with a guide dog. An award of compensation alone would still not have got the claimant a meal.
Royal Bank of Scotland Group Plc v Allen [2009] EWCA Civ 1213, 20 November 2009, was a case where the bank had failed to provide any wheelchair access to the claimant’s branch. A technical design for creating suitable access was drawn up but the bank said it would not implement it even if the court found it had discriminated. The county court ordered an injunction to make the bank install a platform lift in line with the scheme. The lift is now in use today by a range of disabled people and pram-users.
Declarations
A declaration is no more than a formal statement by the court that a service provider has discriminated. Legally, however, it is a separate remedy and may address the aim of an apology, admission or acknowledgement of discrimination, remedies which the court cannot order.
Of course, one way to call a service provider to account for their actions is simply the bringing of court proceedings. This can force a service provider to reflect on their actions and how to avoid future cases. Cases which are settled (or even lost) may bring positive benefits in the long run.