Implications of non compliance Louise Bland Director

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Implications of non complianceLouise
BlandDirector Head of EmploymentLupton
Fawcett LLP
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Topics

• Failure to comply with the general duty
• Commissions formal investigation process
• Judicial review
• Failure to comply with the specific duties
• Commissions enforcement action
• Crossing the line into positive discrimination
• Employment Tribunal claims

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Failure to comply with the general duty

• General duty to have due regard to the need to
  eliminate unlawful discrimination, and to promote
  equality of opportunity and good relations
  between people from different groups in carrying
  out all their functions

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Formal investigation process

• Commissions can enforce the general duty through
  their powers of formal investigation
• Must have sufficient information and a belief
  that unlawful discrimination is taking place
• At the end of the investigation the Commissions
  can
• make a finding of discrimination
• serve a non-discrimination notice on the public
  authority

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Judicial review

• If a public authority does not meet the general
  duty, its actions/failure to act can be
  challenged in the High Court
• Judicial review claim can be brought by
• one or more people with an interest in the
  matter or
• the Commissions

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Failure to comply with the specific duties

• Specific duties are
• to prepare and publish an equality scheme or
  policy stating how the public authority will meet
  the general duty in the areas of policy and
  service delivery and
• to monitor specified employment procedures and
  practices by group

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Enforcement powers (1)

• The Commissions can serve a Compliance Notice
  requiring the public authority to
• comply with the duty and
• provide written information setting out what it
  is doing to ensure compliance with the duty

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Enforcement powers (2)

• If after three months the Commission considers
  that the public authority which has been issued
  with a Compliance Notice has failed to meet a
  requirement of the Compliance Notice, it can
  apply to the High Court for an order requiring
  the public authority to comply
• If the public authority does not meet the
  requirements of the court order, it may be found
  to be in contempt of court

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Positive action

• Positive action has specific parameters
• Where the requirements for positive action are
  not met, the result could be discrimination
• Positive action should help create a level
  playing field not favour any particular racial
  group

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Employment Tribunals

• Claims can be brought by individuals who have
  been discriminated against
• The Commissions may support an individual in
  bringing a claim
• Claims can be brought against individuals as well
  as employers
• Implications include legal costs, adverse
  publicity and management time as well as
  compensation

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Compensation

• Where a tribunal finds that an individual has
  been discriminated against, compensation can be
  awarded for
• financial losses such as lost salary
• injury to feelings
• No maximum limit to the compensation that can be
  awarded

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Conclusion

• Careful balance between complying with the
  statutory duties and avoiding claims for positive
  discrimination
• Check the legislation are you meeting the
  criteria for positive action?
• If you are unsure take advice

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ANY QUESTIONS?

• Louise Bland
• Director Head of Employment
• 0113 280 2000
• louise.bland_at_luptonfawcett.com

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