For some years now it’s been increasingly difficult to get legal aid for those that aren’t on benefits but who will never be able to afford access to justice i.e the vast majority of the population.

Aside from family law, the legal issues which impact most directly on the general public relate to employment law and personal injury and in those areas, no win no fee advice has to an extent filled the gap (a lot mire successfully in injury claims with perhaps the exception of claims relating to medical negligence) but even this is now being erradicated by the swingeing personal injury reforms making no win no fee for low value personal injury claims much less likely and by the forthcoming changes to the employment tribunal rules resulting in court fees being payable.

Even worse, many employment law and personal injury claims overlap with each other. Take the example of an employee who sustains a repetitive strain injury at work. In some instances, this may create a disability and may be caused by negligence or a breach of statutory duty by the employer. This means there is a potential injury claim.

Let’s then assume that the employer is an all round bad egg and decides that instead of making adjustments to help the employee top deal with his or her disability, as required by law, they will instead dismiss the employee who is no longer able to do the job properly. Such a dismissal, especially if proper process is not followed and even perhaps otherwise may constitute unfair dismissal and also, potentially disability discrimination claims, both employment law claims which would typically be started in the employment tribunal. Let’s then assume that the employee, through his or her strenuous efforts and some luck, a couple of months post dismissal, finds another job with a very good and understanding employer.

In the above circumstances, the employee would have very strong and legitimate claims, but both the employment tribunal and personal injury claims might not be worth, in pure financial terms, more than £5,000.00 each. The personal injury claims would be a small claims matter and no costs would be recoverable, making it difficult for the claimant to find a lawyer to take the matter on and still retain the likely damages, plus in the employment tribunal, a person who through no fault of there own has had no income for several months would have to pay a court fee to start a claim and also face the same issue of having to pay the lawyer out of any damages recovered.

It is far from unlikely that in the above situation, the completely blameless victim might have no option other than not to pursue his or her claims, to accept that he or she would possibly get very little financial compensation after legal fees or to decide that it’s simply not worth the stress and hassle of doing anything, meaning that an employer who has let that employee down in a big way escapes scot free.

Both the personal injury system and employment tribunal system have been subject to some excess and abuse in the last 10 years or so, but the reforms that have been brought in certainly do not appear to be fair.

An employer will be in breach of its statutory duty under the Race Relations Act 1976 if it discriminates against an employee on the grounds of race. Racial grounds are defined as grounds of colour, race, nationality or ethnic or national origin. Race discrimination can take place at anytime during the employment lifecycle including: recruitment, promotions and dismissal.

Types of Discrimination

There are four types of race discrimination:

Direct Discrimination

Direct race discrimination takes place when a person treats another person less favourably on racial grounds. It is for an employment tribunal to decide what constitutes less favourable treatment by comparing the treatment of the claimant to that of another racial group. The motive / intentions of the employer are irrelevant and there is no defence once direct discrimination has been proved.

It is important to note that in order for there to be direct discrimination it is not necessary for the claimant to have received less favourable treatment. In Weathersfield Ltd v Sargent [1999] IRLR 94 the employer was found to have been guilty of direct discrimination after instructing an employee, who subsequently resigned and was found to have been constructively dismissed, to discriminate against blacks and Asians.

Direct discrimination is permitted where there is a genuine occupational requirement (GOR) such as:

• Participation in a dramatic or other performance where the employment of a person of a particular racial group is necessary for authenticity; or
• In a place of food and drink where the employment of a person of a particular racial group is required for authenticity ; or
• Where the job role can be most effectively performed by a person of the same racial group as the people they are serving, for example, in a refuge.

Indirect Discrimination

Indirect discrimination takes place where all racial groups are treated equally, however, the effect of a particular practice imposed (on all employees) by the employer has an adverse effect on a particular racial group putting that racial group at a disadvantage. For example, in JH Walker Ltd v Hussain and Other [1996] IRLR 11, the employer was held to have been indirectly discriminatory when it decided that no holidays could be taken for its peak season between May and July. When the Muslim festival of Eid fell in June the company refused to make any exceptions to the policy even though its Muslim employees offered to work extra hours to compensate.

Employers have a defence to indirect discrimination if they can show that the practice is a proportionate way of achieving a legitimate aim. This requires an employment tribunal to consider whether there is a balance between the discrimination and the purpose of the practice taking into account whether there is an alternative way of achieving the same aim.

Harassment

Section 3A of the Race Relations Act 1976 defines harassment as unwanted conduct that either intends or has the effect of violating a person’s dignity or creates a degrading, humiliating of offensive environment. Employees are also protected from harassment by the Protection from Harassment Act 1997 which can force an employer to introduce steps to combat harassment. It allows employees to claim damages and / or injunctive relief in the civil courts and to prosecute in the criminal courts.

Victimisation

Victimisation provisions protect employees from being treated unfairly for brining claims of discrimination against the employer. In Chief Constable of West Yorkshire Police v Khan [2001] 1 WLR 1947 it was held that there are two stages for establishing harassment:

• A comparison between how the claimant is being treated with another employee who has not previously brought a complaint against the employer; and
• The less favourable treatment must be motivated by the complaint brought by the employer.

Vicarious Liability

Employers should be aware that they can be held vicariously liable for acts of racial discrimination by its employees during the course of their employment even where the acts have been done without the employer’s knowledge or approval. Employers will have a defence if they can establish that they took sufficient steps to prevent racial discrimination.

This post supplied by Ben Jones who blogs on Darlingtons employment law site which can be found at http://www.darlingtonsemploymentsolicitors.co.uk