Tribunal power to be removed

Tribunals are to lose the power to make statutory recommendations for failing employers.

Section 124(3) of the Equality Act 2010 enables a tribunal, where a discrimination claim has been successfully brought, to recommend that the employer take steps to address the problem that occurred.

This power has been used in a number of cases including Lycée Français Charles de Gaulle v Delambre UKEAT 0563/10, Stone v Ramsay Health Care UK Operations Ltd ET/1400762/11, Why v Enfield Grammar School ET/ 3303944/2011, Crisp v Iceland Foods ET/1604478/11 & ET/1600000/12, and Austin v Samuel Grant (North East) Ltd [2012] EqLR 617.

In these cases, the recommendations were for managers to undergo equal opportunities training and for the employers’ discrimination policies to be updated.

Tribunals are only able to enforce recommendations retrospectively, and whether a recommendation has been adopted by an employer is only scrutinised by a tribunal if another discrimination claim is subsequently brought before it.

However, the government recently consulted about removing this power for tribunals. Almost four-fifths (79%) of respondents opposed the government’s proposal, including the president and the regional employment judges of Employment Tribunals in England and Wales.

Despite this, the government is to proceed with its proposal and section 124(3) will be repealed in the near future.