by Laurie Anstis on November 22, 2010
In a couple of weeks time I will be giving a talk about future development of discrimination law and the Equality Act 2010.
One part of that will be looking at the trends in discrimination claims. Here is a chart (taking from the Tribunals Service figures) showing the figures for the number of discrimination claims lodged over the past six years.
These are my predictions for how discrimination claims will develop in the future:
1. Overall trends
Apart from equal pay, the overall number of discrimination claims will continue to increase, and particularly so if the government’s plans to increase the qualifying period for unfair dismissal rights to two years comes to fruition.
Employers faced with such claims will increasingly seek to rely on the “statutory defence” (s109(4) Equality Act 2010), particularly in the public sector and in areas that have invested in training on equalities.
Claims will increasingly be brought by traditionally advantaged, rather than disadvantaged groups – so we will see more men bringing sex discrimination claims and more white employees bringing race discrimination claims.
The EAT’s decision in Woodcock -v- Cumbria PCT and the question of whether cost alone can justify discrimination will be hotly debated – particularly in disability and age discrimination cases.
2. Equal pay claims
The chart shows the dominance of the previously niche area of equal pay. Of course, these figures are skewed by the mass equal pay litigation in the public sector, where claims seem to come in in batches of 100 or more at a time. The graph suggests that fewer of these mass claims are now being submitted. My view is that the trend in the sheer number of equal pay claims submitted will continue to be down, but that there will be an increasing number of individual claims being brought at senior levels within organisations – both public and private sector. Equal pay claims will, over the next few years, cease to be regarded as unusual and esoteric, and will become mainstream. The average value of each individual claim will increase.
3. Sex discrimination claims
The incidence of sex discrimination claims is clearly linked to the incidence of equal pay claims, with many sex discrimination claims being brought at the same time as equal pay claims, in order to head off arguments that the pay or benefits being claimed are non-contractual (and so caught only under sex discrimination, rather than equal pay, law).
The number of sex discrimination claims will remain static, or slightly decline in line with the decline in numbers of equal pay claims.
The EAT’s eventual decision in Eversheds -v- De Belin will be fascinating in determining the extent to which a man can compare his treatment with that of a woman on maternity leave. Sex discrimination claims brought by men will be a particular feature of the next few years, with some interesting questions in the Markin -v- Russia line comparing the parental and family leave and pay entitlements of men and women.
4. Disability discrimination claims
The Equality Act’s reinstatement of the right to claim disability-related discrimination and introduction of a right to claim indirect discrimination on the basis of disability, taken together with a robust approach to absence management in the public sector, will lead to a sharp increase in disability discrimination claims.
5. Race discrimination claims
The number of race discrimination claims will remain static, with the most striking feature being an increase in the proportion of claims being brought by white employees. The tribunals will also have to wrestle with difficult issues around nationality discrimination and restrictions on non-EU nationals’ right to work in the UK (see e.g. Osborne Clarke -v- Purohit), in the light of the government’s plans to impose limits on under the points-based immigration scheme.
6. Age discrimination claims
The number of age discrimination claims will increase substantially, and will exceed the number of race discrimination claims for the first time.
7. Religious discrimination claims
The tribunals will continue to adopted a restrictive approach to claims of indirect religious discrimination, and the number of claims will remain static or fall.
8. Sexual orientation discrimination claims
These will be concentrated around claims of harassment on the basis of sexual orientation (or perceived sexual orientation) and will exceed the number of religious discrimination claims.
How do you see discrimination claims developing over the next few years?