Chapter 14 - Enforcement

14.1 This chapter gives an overview of enforcement by the civil courts in England, Wales and Scotland of Part 3 of the Act (which applies to services and public functions) and Part 7 (which applies to associations) (s.113 to 119 and s.136 to 144).

14.2 In this chapter, ‘civil courts’ means the county courts of England and Wales and the sheriff court in Scotland unless the contrary is indicated.

Claims for judicial review are dealt with as a separate topic below.

14.3 This chapter is not intended to be a procedural guide to presenting a claim to the civil courts. The civil courts procedure is contained in the Civil Procedure Rules 1998 in England and Wales and in the Sheriff Court Civil Procedure Rules, which include the Ordinary Cause and Simple Procedure Rules, in Scotland.

14.4 A person who brings proceedings in England and Wales is known as the claimant and a person against whom proceedings are brought is known as the defendant.

14.5 A person who brings proceedings in Scotland is known as the pursuer in Ordinary Cause claims, and the claimant in Simple Procedure claims. The person against whom proceedings are brought in Scotland is known as the defender in Ordinary Cause claims and the respondent in Simple Procedure claims. For brevity, in this chapter we use the terms pursuer and defender for proceedings in both Ordinary Cause and in Simple Procedure.

14.6 A person who believes they have suffered unlawful discrimination, harassment, or victimisation in the provision of services, the exercise of public functions or the activities of associations may bring civil proceedings.

14.7 Those proceedings normally take place in the county court in England and Wales and the sheriff court (in Scotland). There are exceptions to this which are explained in this chapter.

14.8 The unlawful acts that the civil courts can remedy include:

• direct discrimination
• indirect discrimination
• pregnancy and maternity discrimination
• discrimination arising from disability
• failure to make reasonable adjustments for disabled persons
• harassment
• victimisation

14.9 These forms of unlawful conduct are explained in:

• Chapter 4 - Direct discrimination
• Chapter 5 - Indirect discrimination
• Chapter 6 - Discrimination arising from disability
• Chapter 7 - Disabled people: reasonable adjustments
• Chapter 8 - Harassment
• Chapter 9 - Victimisation and other unlawful acts

For brevity, these are all referred to as ‘unlawful acts’ in this chapter.

14.10 Before starting proceedings, a person should ensure that the relevant provisions of the civil courts’ rules are observed. In England and Wales, this includes consideration of the Civil Procedure Rules Practice Direction on pre-action conduct and protocols, which sets out requirements for the content of pre-action correspondence.

14.11 In cases about unlawful acts, a judge or sheriff (in Scotland) will usually have to appoint an ‘assessor’ to assist them. These are persons of skill and experience in discrimination issues who help to evaluate the evidence. The Act says that unless the judge or sheriff is satisfied that there are good reasons for not doing so, they must appoint an assessor (s.114(7) and (8); s.63(1) of the County Courts Act 1984; rule 44.3 of Sch.1 to the Sheriff Court (Scotland) Act 1907).

14.12 A party to proceedings can object in writing to the court about the appointment of an assessor.

14.13 Court action must be started within six months minus one day of the alleged unlawful act (s.118). The court can extend this time limit provided it is ‘just and equitable’ to do so (s.140AA). This is explained further below.

14.14 The six-month time limit may also be extended in certain contractual disputes where a non-binding alternative dispute resolution (ADR) procedure has started, with an approved Alternative Dispute Resolution Provider. This extension applies when the ADR procedure has commenced within the six-month time frame or within an extended time frame if it has been extended by the courts. If a claimant or pursuer (in Scotland) meets these conditions, they will have up to eight weeks from the date the dispute resolution ends to start their claim in court.

When does the period for bringing the claim start?

14.15 The Act says that the period for bringing a claim starts with the date of the unlawful act. Generally, this will be the date on which the alleged unlawful act occurred. For example, the date when a person was refused entry to a shop on an unlawful basis would be the start of the period for bringing a claim about that refusal.

14.16 Sometimes, however, the unlawful act is a service provider’s failure to do something. The Act says that a failure to do a thing occurs when the person decided not to do it (s.118(6)(b)). In the absence of evidence to the contrary, a person is treated as deciding not to do a thing:

1. when they do an act inconsistent with doing the thing, or
2. on the expiry of the period in which they might reasonably have been expected to do the thing (s.118(7))

14.17 The question of when a defendant or defender (in Scotland) might reasonably have been expected to have acted is to be considered from the claimant’s or pursuer’s perspective, having regard to the facts known or which ought reasonably to have been known by the claimant or pursuer at the relevant time [footnote 84].

14.18 The Act provides that where conduct extends over a period it should be treated as being done at the end of that period for the purposes of calculating when the unlawful act occurred (s.118(6)(a)).

14.19 If a service provider has a policy, rule, or practice (whether formal or informal) in accordance with which decisions are taken from time to time, this might constitute ‘conduct extending over a period’.

14.20 If a person is discriminated against on many occasions, then the period for bringing a claim starts when the last act of discrimination occurred.

14.21 If an unlawful policy results in a person being discriminated against on a continuing basis, then the period starts when the policy is no longer applied.

14.22 A continuing state of affairs made up of a series of acts that are linked to one another may also constitute conduct extending over a period, even if the linked acts are not the result of any ‘policy’ or ‘rule’, and even if the individual acts are done by different persons and at different places. However, where a single or one-off unlawful act has continuing consequences, the time limit to bring a claim will start from the date of that unlawful act, and not from the date of its consequences.

What happens if the claim is presented outside the correct time limit?

14.24 Where a claim is brought outside the time limits referred to above, the courts have discretion to hear the case if satisfied that it is just and equitable to do so (s.118(1)(b)).

14.25 When a court considers whether to exercise its ‘just and equitable’ discretion, it will have regard to all the relevant circumstances of the case. This will almost always include the length and reasons for the delay, and the impact and prejudice on the parties if the claim is heard, or not heard, out of time. The court may also have regard to:

• the extent to which the strength of the evidence is likely to be affected
• the extent to which the defendant or defender (in Scotland) has cooperated with any requests for information
• the promptness with which the claimant or pursuer (in Scotland) acted once they knew of the facts giving rise to the claim
• the steps taken by that person to obtain appropriate legal advice once they knew of the possibility of taking action

Courts are not required to go through each of the above list of factors. The only requirement is that they do not leave a significant factor out of account.

14.26 A claimant or pursuer (in Scotland) (s.136) who alleges that they have experienced an unlawful act must prove the facts from which a court could decide, in the absence of any other explanation, that such an act has occurred.

14.27 If a claimant or pursuer has proved facts from which a court could conclude that there has been an unlawful act, then the burden of proof shifts to the defendant or defender (in Scotland). To successfully defend a claim, the defendant or defender will have to prove, on the balance of probabilities, that they did not act unlawfully. If the defendant or defender fails to do so, the court must find that the act was unlawful.

14.29 Where the basic facts are not in dispute, a court may simply consider whether the defendant or defender is able to prove, on the balance of probabilities, that it did not commit the unlawful act.

14.30 The above rules on burden of proof do not apply to proceedings following a breach of the Act which gives rise to a criminal offence (s.136(5)).

14.31 Nothing in the Act prevents the parties settling a claim or potential claim before it is decided by the civil courts. A settlement of this nature can include any terms the parties agree to (with approval from the court if proceedings have commenced) and can cover compensation, future actions by the defendant or defender (in Scotland), agreement on costs, and other lawful matters.

Conciliation

14.32 The Equality and Human Rights Commission (EHRC) no longer has a specific power to provide conciliation services. This power, under section 27 of the Equality Act 2006, was repealed by section 64(1)(b) of the Enterprise and Regulatory Reform Act 2013 with effect from 25 June 2013. However, for some sorts of cases in England and Wales, mediation services are available through the courts service, and, in Scotland, other mediation services may be available. These can be used instead of waiting for a case to be heard by a judge. Mediation has the advantage of generally reducing costs and may successfully settle a claim without the need for a contested hearing. Further information about conciliation services can be found on Scottish and United Kingdom government web pages.

Obtaining information

14.33 Until 6 April 2014, s.138 of the Equality Act 2010 provided that an individual could follow a statutory procedure to use a questionnaire to question a person they think may have contravened the Act. The questions and answers were admissible as evidence in court or tribunal proceedings. This procedure was abolished on 6 April 2014 by the Enterprise and Regulatory Reform Act 2013 (Commencement No. 6, Transitional Provisions and Savings) Order 2014.

14.34 It remains good practice for persons who think that they may have been unlawfully discriminated against, harassed or victimised under the Act to seek relevant information before making a claim through the civil courts. In England and Wales, the Civil Procedure Rules pre-action protocol should be followed (read paragraph 14.37). This may avoid the complaint escalating to a formal legal claim.

14.35 If the complaint under the Act is about the lawfulness of a decision, action, or a failure to act by a public authority or a private person carrying out a public function, the person complaining may bring proceedings for judicial review (s.113(3)(a)).

14.36 Remedies potentially available through a judicial review action both in England and Wales and in Scotland include:

• a declaration of the rights and responsibilities of the parties to the claim
• a prohibiting order, which stops a public body from taking an unlawful decision or acting in a way that would be unlawful
• a mandatory order, which requires a public body to take a particular action or make a decision within a specified period of time
• a quashing order, by which the court can set aside an administrative decision or action of a public authority

Special rules apply where it is alleged that a mandatory order might prejudice a criminal case (read paragraph 14.53 and paragraph 14.54).

14.37 An action for judicial review must be brought in the High Court in England and Wales or the Court of Session in Scotland. A claimant or petitioner (in Scotland) must obtain permission from the High Court or Court of Session. An application for permission must be made promptly and, in any event, not later than three months after the grounds for judicial review first arose, unless any specific statutory exceptions apply to shorten the time limit. In England and Wales, there are some exceptions listed in the Civil Procedure Rules (CPR 54.5). A detailed explanation of the civil procedure rules is beyond the scope of the Code. The court will generally expect any appeal mechanisms against the decision to have been exhausted before granting permission for judicial review. Judicial review is a remedy of last resort.

14.38 Complaints about unlawful acts relating to certain decisions made under the relevant immigration provisions by the Secretary of State, or by an immigration officer or an official and which relate to the entitlement of a person to enter or remain in the United Kingdom are heard by the First-tier Tribunal which deals with appeals against immigration decisions (s.115; Part 5, The Special Immigration appeals Commission Act 1997; Nationality Immigration and Asylum Act 2002).

14.39 The First-tier Tribunal can determine whether an unlawful act under the Act has taken place, but it does not have jurisdiction to award compensation. If it finds that an unlawful act has taken place, then the claim for a remedy arising out of that finding may be brought before the civil courts.

14.40 The finding made by the First-tier Tribunal is binding and cannot be challenged before the civil court. The court’s jurisdiction is limited to giving the person a remedy for the act of discrimination.

14.41 There are special time limits for claims about discrimination in the context of immigration decisions in the civil courts (s.118(5)). During the period that an appeal against the immigration decision is possible, it is not possible to bring a claim for discrimination in the civil courts. If the First-tier Tribunal decides that the immigration authority contravened the Act, then once that appeal period is completed the claimant has six months within which to bring a claim for discrimination in the civil courts.

14.42 The Act includes the possibility of special rules being applied to proceedings for the purpose of safeguarding national security (s.117). Read paragraph 13.20 to 13.23.

14.43 The court rules allow the court to exclude the claimant or pursuer (in Scotland) from part or all of the proceedings, where the court considers it expedient in the interests of national security. The court may also exclude their representative and the assessor in the case if it considers it necessary.

14.44 The court may take steps to keep secret part or all of the reasons for its decision.

14.45 The Attorney General for England and Wales or the Advocate General for Scotland may appoint a person to represent the interests of a claimant or pursuer in such proceedings. However, that representative is not responsible to the person whose interests they are appointed to represent.

14.46 In England and Wales, the county court has the power to award all the remedies which the High Court can grant in proceedings in tort (such as in a claim for negligence) or in a claim for judicial review (s.119(2)). In Scotland, the sheriff court has the power to make any order which could be made by the Court of Session in proceedings for reparation or in a petition for judicial review (s.119(3)). These may include:

• an injunction or interdict (in Scotland). An injunction is an order to perform, or refrain from performing, a particular act.
• damages to compensate for any loss suffered
• legal costs or expenses (in Scotland)
• any of the other orders a court may make in a claim for judicial review (read paragraph 14.35).

14.47 Damages may include compensation for injured feelings, whether or not it includes compensation on any other basis (s.119(4)).

14.48 An award of damages can include compensation for any loss the claimant or pursuer (in Scotland) has suffered.

14.49 In England and Wales where a defendant acts unlawfully under the Act, the courts may, very occasionally, award ‘exemplary’ damages, which are punitive. These damages are not available in Scotland.

14.50 At the court’s discretion, exemplary damages may be awarded in two situations:

• for oppressive, arbitrary, or unconstitutional action by servants of the government
• where the defendant has calculated that their conduct is likely to make a profit for themselves which exceeds any compensation that they may later have to pay for their wrongdoing

Damages for complaints of indirect discrimination

14.51 Where the civil court makes a finding of indirect discrimination but is satisfied that the provision, criterion or practice was not applied with the intention of discriminating against the claimant or pursuer (in Scotland) (s.119(5)), it must not award damages unless it first considers whether to dispose of the case by providing another remedy, such as a declaration or prohibitive order (s.119(6)).

14.52 Indirect discrimination will be intentional where the defendant or defender (in Scotland) knew that certain consequences would follow from their actions, and they wanted those consequences to follow. A motive, for example, of promoting business efficiency, does not mean that the act of indirect discrimination is unintentional.

Effect on criminal matters

14.53 Civil courts must consider and prioritise avoiding risk of prejudice to criminal investigations and proceedings that come to their attention. Nevertheless, they may progress with civil proceedings if satisfied that no prejudice will be caused to criminal matters.

14.54 The civil courts must not grant an interim injunction or interdict (in Scotland) unless satisfied that no criminal matter would be prejudiced by doing so (s.114(6)(a)). However, where the civil courts find grounds for prejudice to a criminal matter, they must grant a stay or sist (in Scotland) of proceedings (where proceedings are paused) unless satisfied the matter will not be prejudiced (s.114(6)(b)).

14.55 The EHRC has enforcement powers in relation to the Act, under the Equality Act 2006 (s.20 to 33; Equality Act 2006), which include powers to:

• undertake investigations
• issue unlawful act notices
• agree action plans
• enter agreements
• seek Injunctions or interdicts (in Scotland)
• undertake public sector duty assessments
• issue public sector duty compliance notices.

Details of these can be found on the EHRC’s website.

14.56 The EHRC also has the power to provide legal assistance for claims of discrimination made under the Act (Equality Act 2006 s.28). This can include legal representation and can extend to discrimination cases with a human rights element. However, this power does not permit assistance in cases that only raise human rights issues.

14.57 The EHRC also has the power to:

• bring legal proceedings in its own name
• intervene in legal proceedings brought by others (Equality Act 2006 s.30)

84. Virdi v Commissioner of Police of the Metropolis [2007] IRLR 24 at §25; and British Gas Services Ltd v McCaull [2001] IRLR 60. The date a claimant becomes aware that an unlawful act occurred may be relevant to discretion to extend time: Mensah v Royal College of Midwives UKEAT/124/94