TMP Online

In his first major speech since taking over as Chair of the new Equality and Human Rights Commission, Trevor Phillips has called for the government to introduce the use of representative actions, legal action taken on behalf of a group of named individuals that is similar to a class action law suit. Mr. Phillips was speaking to an audience in Cardiff at the annual Bevan Foundation lecture this week.

Against a backdrop in which recent figures from the National Employment Panel indicate 83 percent of employers now believe they will never face sanctions for discrimination, Mr. Phillips said there were powerful reasons to shift the burden away from individuals taking individual claims - often at great personal cost and without adequate legal representation - to organisations like the new Equality and Human Rights Commission taking cases on behalf of groups of individuals. Mr. Phillips (right) said:

“Access to justice through the courts is a luxury good for many of those experiencing discrimination. Many cases are meritorious, many have had an experience which has been intolerable, and who should have their day in court – but there is just no way to fund them.

More importantly, going to a tribunal takes patience, resource and fortitude – and these qualities are demanded at the very moment when an individual has been made to feel small and impotent. In truth, taking action against discrimination today is the business of heroes. It should not be.”

As the government conducts an ongoing review of anti-discrimination legislation with a view towards creating a Single Equality Act early next year, Mr. Phillips said the Commission’s response to the government’s consultation on the Bill, published on Tuesday, asked for the power to take such group actions, something the Commission is calling “representative actions”.

Representative actions would allow the Commission to bring a claim on behalf of a number of identified individuals and to use the full weight of its legal powers to bring about change. In financial terms, this would provide real access to justice and protect individuals from having to stand up alone and fight their case - fearing victimisation if they do.

One area where there is a brewing crisis and where such representative actions could have an immediate positive impact, according to Mr. Phillips, is in equal pay. There are currently over 44,000 equal pay claims lodged with the employment tribunal system, an increase of about 150 percent on last year. Mr. Phillips added:

“Taking an action on behalf of an entire group of such claimants, we – and bodies such as trade unions - will be able to tackle the discrimination inherent in pay systems, and help to reduce the burden of the employment tribunal. Representative actions would provide quicker and more effective access to justice.”

In his speech, Mr. Phillips also made reference to another key element of the Commission’s response to the Discrimination Law Review, the prospect of a constitutional commitment to equality. He said the Commission felt the government had set its sights too low in the Green Paper and a grander “vision” was needed. The government’s simultaneous consultation on the possibility of a written Bill of Rights, he suggested, meant the time was ripe to ensure that equality is established as a bedrock principle of our society - namely by making it a foundation of any proposed constitution and providing the country with a powerful statement of its aspirations to create a more equal society.

“In short we want equality to be part of the foundation of our country’s constitution. And if our Prime Minister is truly serious about the idea of a written constitution we know that one of its first clauses needs to be, perhaps only preceded by the security of the realm - a ‘constitutional promise’ of equality to the British people. We need a fundamental commitment that guarantees all citizens equality regardless of other factors, and provides an anchor to hold us firm in the storms created by rapid diversity and social change.

At the moment, the legal commitment to equality is embedded only in the multiple anti-discrimination acts and regulations that make up the relevant legislation. We want equality to be elevated to the status of a constitutional principle, superior to all other pieces of legislation: a principle which is independent of the changing fortunes of politics, which conditions parliamentary sovereignty, and to which Parliament itself is subject.”