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An EHRC report highlights the problems employees face in taking discrimination cases to tribunal.
Victims of discrimination are not able to pursue claims because they can’t afford to take cases to tribunal, according to an inquiry by the Equality and Human Rights Commission.
The inquiry found that between 2013/14 and 2017/18 no workplace discrimination cases received legal aid funding for representation in the employment tribunal, and only one in 200 cases taken on by discrimination specialists received funding for representation in court.
One reason is legal aid rules which effectively limit funding to cases with high compensation awards. The Commission says this “misses the point when it comes to discrimination cases” since they are often more about challenging unacceptable behaviour and upholding rights than obtaining financial awards.
It recommends that the government change its guidance to ensure that discrimination claims are not assumed to be simply a claim for damages.
The Commission also found that Exceptional Case Funding (ECF), which aims to provide a safety net for cases where legal aid is not usually available but where a victim’s fundamental rights are at risk of breach, is “not working as it should”. It says only 10 applications were made for ECF for discrimination cases in a five-year period and none were granted.
It calls for the government to produce specific guidance on ECF for discrimination cases, with an onus on caseworkers charged with granting funding in these cases taking into account the potential complexities, the resources of the parties and any other factors that may prevent the victims being able to represent themselves.
EHRC Chair David Isaac said: “Legal aid was specifically set up to ensure that those who have been wronged, but cannot afford their own legal representation, can access justice.
“The threat of legal action is a powerful deterrent for perpetrators and makes it clear that society will not tolerate injustice.
“Challenging complex issues such as discrimination should never be a David vs Goliath battle, and the system is failing if individuals are left to fight cases themselves at an employment tribunal or in court.
“The current system is clearly in need of reform, and whilst we are pleased that the government is currently reviewing the legal aid process, it must implement our recommendations if the legal aid system is to deliver once again.”
The report also highlights that those who are not financially eligible for funding but who cannot afford to pay for their own legal advice are slipping through the cracks – including some of those living below the poverty line.
The EHRC is calling on the government to change the financial eligibility threshold to expand the number of people that receive legal aid.
The Inquiry also uncovered evidence that the current system of telephone advice is not working for some people.
It is calling for the government to follow through on its commitment to reinstate face-to-face legal advice and ensure there are enough providers so that it can be a genuine option for anyone who needs it.