Equalities watchdog calls for changes to legal aid to ensure discrimination in workplace is challenged

The Equality and Human Rights Commission has urged the Government to amend its legal aid funding guidance to ensure that discrimination claims which are also seeking other resolutions, such as an injunction or declaration, are not assumed to be a claim for damages, “due to the importance of confronting discrimination to the individual and to society”.

The watchdog said victims of discrimination were being denied their fundamental right to justice and perpetrators were escaping unchallenged as a result of the current system.

An EHRC Inquiry into legal aid for victims of discrimination concluded that very few people were getting the representation they needed in courts or tribunals.

The EHRC found that:

• No discrimination at work cases received legal aid funding for representation in the employment tribunal;
• Only 1 in 200 cases taken on by discrimination specialists received funding for representation in court.

The watchdog said its inquiry had identified a number of barriers to representation, “including rules which effectively limit funding to cases with high compensation awards”.

The EHRC claimed that this requirement “misses the point” when it comes to discrimination cases which are “often more about challenging unacceptable behaviour and upholding rights than obtaining financial awards”.

The EHRC also found that Exceptional Case Funding (ECF), which should 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.

Only ten applications were made for ECF for discrimination cases in a five year period and none were granted.

The equality body has called for the Government to produce specific guidance on ECF for discrimination cases, “making sure that caseworkers charged with granting funding in these cases take into account the potential complexities, the relative resources of the parties and any factors that may hamper the victim’s ability to represent themselves”.

David Isaac, Chair of the Equality and Human Rights Commission, 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 such complex issues 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 EHRC has also called on the Government to change the financial eligibility threshold to expand the number of people that receive legal aid.

The inquiry uncovered evidence that the current system of telephone advice is “simply not working for some people” and the watchdog said the Government should follow through on its commitment to reinstate face-to-face legal advice.