In successful discrimination cases, tribunals now have the power to make recommendations about what steps the respondent should take to reduce the adverse effect of discrimination for the benefit of its entire workforce.
Before the Equality Act 2010 came into force, tribunals only had the power to make recommendations to assist the claimant. However, given 70% of employees involved in discrimination claims leave their employer, tribunals’ hands were often tied by this power to make recommendations. The Act has given tribunals more discretion in making recommendations by allowing them to be made for the benefit of the whole workforce (whether or not the complainant is still employed) and is therefore likely to be used far more frequently.
Possibly because of these previous limitations, there has been very little case law on the use of recommendations. However, the recent case of Lycee Francis Charles De Gaulle v Ms M Delambre has demonstrated that tribunals have a wide discretion when it comes to making recommendations and that the EAT will rarely tinker with any tribunal decision on the subject.
In this case, a French school located inLondon, was found to have discriminated against an employee on the grounds of age and subjected to victimisation. The tribunal upheld the Claimant’s claim in a stinging judgment stating “not only has the Respondent displayed a quite staggering, and the Tribunal found wilful, ignorance of the UK Employment Law…and arrogant refusal to accept that every employer in the UK, of no matter what nationality, is subject to the Law of England” and “we do not accept that being French is a mitigating factor”.
The damning judgment resulted in the Tribunal making three recommendations:
- Informing the governing board and senior management of the tribunal judgment
- Engaging an HR professional to review policies and procedures
- Having a programme of equality and diversity training cascaded through the organisation
The employer decided to appeal on the grounds that the recommendations were too broad. The EAT dismissed this argument and felt there was nothing wrong with the Tribunal’s recommendations and the decision to improve the employers mindset on discrimination was within the Tribunal’s discretion.
Given the wider power tribunals now have, it is likely we will be seeing more recommendations being made. For employers, beware, they will be rarely be altered on appeal.