Following on from Innes’ previous blog, the Equal Opportunities Review (“EOR”) has continued its analysis of discrimination compensation awards in 2011, providing details of awards in sex and race discrimination cases. The new report also examines ‘combined’ discrimination claims – those which relate to more than one protected characteristic – which category provided us with the largest award in 2011, namely £4.5 million in Michalak v The Mid Yorkshire Hospitals NHS Trust.
At just 103, there were fewer sex discrimination awards made in 2011 compared with 187 in 2010. Despite this drop, the average award in sex discrimination claims in 2011 was significantly higher than in previous years, showing a rise of 42% from £11,324 in 2010 to £16,076 in 2011. This upwards trend is reflected in the breakdown of these awards, with injury to feelings awards in sex discrimination claims coming in at an average of £6,897 (a 21% increase on the 2010 average). Interestingly, almost a third of the sex discrimination awards analysed by the EOR in 2011 related to dismissals due to pregnancy. Of course, with the introduction of the Equality Act 2010, pregnancy and maternity discrimination became a “protected characteristic” in its own right. The EOR has indicated that, going forward, it will be appropriate to separate out these claims and I, for one, will be keen to see the impact this has on the steady increase in the overall sex discrimination statistics.
Perhaps one figure to take note of is that, of the 103 sex discrimination awards in 2011, almost half of employers (49%) were ordered to pay £10,000 or more. This is a sharp increase (from 36% in 2009 and 43% in 2010) is clearly notable, especially when compared with other forms of discrimination. In race discrimination cases, only 27% of employers received an order to pay £10,000 or more in 2011 (compared with 43% in 2010). Disability discrimination showed a similar decreasing trend, with 38.3% of employers in 2011 paying £10,000 or more (compared to 42.7% in 2010). So, does this mean that an employer is more likely to be ordered to pay a higher level of compensation in sex discrimination cases than other types of discrimination? Perhaps, but given the huge yearly swings in the numbers here, we can place limited store on generic statistics. The risk of a sizeable award still (and always will) be best assessed by the prospects of success in each individual claim.
This year’s race discrimination statistics are more encouraging for employers, comprising only 37 cases (51 in 2010) and showing a downward trend. The average figures are skewed by one sizeable award (£1million in Browne v Central Manchester University NHS Foundation Trust) but, discounting that award, the median figure sits at just £4,000 (a decrease of almost 50% from 2010). The injury to feelings awards have likewise decreased for race discrimination, averaging £5,088.
The combined jurisdiction cases do not disappoint this year once again (perhaps unsurprisingly) reporting the highest average and median figures over the individual protected characteristic claims. As noted above, the record-breaking claim, Michalak, falls into this category, being a combined sex and race discrimination claim. This is the most common combination of claims (four of ten cases) with race discrimination featuring in eight of the ten combined claims. Excluding Michalak, the average awards have been decreased significantly to £12,817 from £22,315 in 2010.
Part 2 of the EOR’s report also contains details of the recommendations made in the sex and race discrimination claims – providing us with further evidence of the Tribunal making use of its power to make general recommendations to employers, rather than guidance relating only to the Claimant. Examples include:
- requiring an organisation to redraft its equal opportunities policy to include maternity and pregnancy as a protected characteristic;
- recommending the implementation of training for HR staff on maternity policies (with particular emphasis on employers’ statutory obligations during the protected period);
- instructing a review of procedures for keeping in touch and consulting with those on maternity/paternity leave during a workforce restructure;
- directing that a senior member of the employer’s HR team discuss the Tribunal’s judgment with each of the individuals who perpetrated acts of sexual harassment; and
- a strict recommendation that an employee who made racially abusive statements be relocated within the employer’s organisation “within 28 days”.
As Innes has previously mentioned, the Government has consulted on the Tribunal’s power to make such recommendations and we await the outcome of this consultation with interest.
At the very least, these sex and race discrimination figures and recommendations highlight that it is more important than ever to ensure staff are provided with comprehensive and timely equal opportunities training to help protect a business against the risk of costly discrimination awards in the Employment Tribunal.