EQUALITY COMMISSION FOR NORTHERN IRELAND REVIEW OF LEGAL ASSISTANCE July 2013

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1 EQUALITY COMMISSION FOR NORTHERN IRELAND REVIEW OF LEGAL ASSISTANCE July Legal Funding 1.1 The Commission s Discrimination Advisory Team dealt with enquiries from 3300 individuals during the period 1 April 2012 to 31 March Enquirers were given verbal and written advice, plus Commission material about the law in relation to their area of enquiry. They were advised on legal deadlines; informal resolution; lodgement of proceedings; potential remedies and applying for legal assistance. New applications for assistance 1.2 Two hundred and sixty four applications for assistance to pursue a legal case were considered by the Legal Funding Committee. Legal Funding Committees met for 24 scheduled meetings and 9 emergency meetings between 1 April 2012 and 31 March Of the 264 new applications for assistance considered in this period, 83 [31%] were granted assistance and 181 [69%] were refused. The largest number of new applications granted assistance were in the area of disability [21], followed by gender [18], race [11] religion and politics [8], age [4] and sexual orientation [2]. The remaining applications were hybrid complaints where discrimination was alleged on more than one ground. There were 19 hybrid complaints assisted in the period. Reviews of Assistance 1.4 The Committees also considered 111 reviews of assistance for existing cases. The majority of existing cases 95 [86%] had the grant of assistance extended. However 16 cases [14%] 1

2 had assistance discontinued because of a negative opinion from Counsel on the merits of the case and/or further assistance was refused on the basis that those cases were no longer considered of strategic value. Re-examinations 1.5 Nineteen cases which had been refused assistance or had assistance withdrawn were re-examined at the complainants request. 18 had the original decision confirmed and 1 had the decision overturned. It remains the case that the Commission is more likely to continue with cases at the review stages, with 86% of cases retaining assistance after review. It should be noted that many more cases are settling at an earlier stage, largely due to the Tribunal s success at case managing complaints. 2. Case Outcomes in Settlements 2.1 During the year 62 cases were settled out of court. The total amount of compensation recovered for applicants in the period 1 April 12 to 31 March 13 was 474, Compensation on individual cases this year ranged from 250 in a sexual orientation claim relating to discriminatory treatment of a gay parent at Seymour Hill nursery school, to 30,000 in settlement of a religion/political discrimination employment case against an Asda supermarket involving sectarian harassment of an employee by other employees. The spread of settlements across the equality areas was 16 race (including some group cases); 12 disability; 10 gender; 7 religion/politics; 3 sexual/orientation and 14 hybrids. 2.3 In most settlements the Commission negotiated additional terms. These included undertakings to liaise with the Commission in order to review the practices, polices and/or procedures which led to the case being taken; commitments to equality principles; apologies or statements of regret; provision of references; and commitments to undertaking equality training. 2

3 2.4 All follow up work is carried out by the Commission s Advice and Compliance Division, the outcomes of which are separately reported. Decisions 2.5 During 2012/13 eight decisions (involving 13 claimants) were issued in cases supported by the Commission. Six decisions were issued by Tribunals in employment discrimination claims. Three of these claims were upheld and three were dismissed. Two decisions were issued in service provision claims; both were dismissed. Disability Cases 2.6 Angela McCracken v- Northern Health & Social Care Trust. Compensation of 16, was awarded to a partially sighted auxillary nurse in a disability claim, regarding a failure to make a reasonable adjustment. The claimant was prevented from returning to work for over a year while the Trust considered the adjustments. The delay was considered discriminatory. 2.7 Lucien Coia-Elliott v- Forge Integrated Primary School. The Special Educational Needs and Disability Tribunal (SENDIST) dismissed this action taken by the mother of a 6 year old autistic boy claiming that the school failed to make sufficient reasonable adjustments for his disability. Gender Cases 2.8 Frances Colvin v- Driver Vehicle & Licensing Authority. A Tribunal awarded 11,160 for sex discrimination and discrimination on the grounds of her part-time worker status during the employment of a female vehicle test examiner. The claim related to the failure to allow training opportunities to train as a Large Goods Vehicle (LGV) Tester; and also differential overtime payments. 2.9 Nuala Kelly v- J&K COACHES & Others. A Tribunal dismissed a sex discrimination claim taken by a coach driver who alleged that her failure to be considered for a post was 3

4 victimisation because she had issued a previous sex discrimination claim. Fair Employment Case EC/13/06/ Dr Alan Lennon v- Department for Regional Development. In this high profile case, a Fair Employment Tribunal upheld a religious/political discrimination claim taken by a Protestant man regarding his failure to be appointed to the position of Chair of NI Water. Subsequent to the decision a conciliated settlement was agreed between the parties; the claimant received 150,000 in settlement of his case. Race Cases 2.11 Kelly B, Kelly C & Donahue A v- Dunelm (Soft Furnishings) Ltd. This was a racial discrimination case taken by three Irish Traveller women who were followed around a shop and asked to leave by the security staff. There was no suggestion of shoplifting. The judge sitting in Belfast Recorder s Court dismissed their claim that their treatment was racial discrimination in the provision of goods, facilities or services and accepted the staff explanation that they were unaware the women were Travellers and could instead have been from southern Ireland Mocarski, M, K, M & P v- Victor Foster Poultry Services. The constructive dismissal of four Polish brothers who left their employment in a poultry processing plant was held to be unfair. They claimed to have been treated less favourably than the NI workers in pay and conditions. They were awarded sums of compensation totalling over 25,000 for the unfair dismissal. However, their allegations of racial discrimination were not upheld. Hybrid Case 2.13 Peter Sefton v- Queens Counsel Appointments (NI) Ltd. This Protestant barrister complained of discrimination on grounds of religion, politics, gender and age regarding his failure to be appointed as Queens Counsel. At a pre-hearing review the Tribunal dismissed the claim on the basis that the particular 4

5 appointment fell outside the protection afforded by antidiscrimination legislation. 3. Satisfactory Outcomes EC/13/06/8 3.1 The Commission sought to achieve satisfactory outcomes for 75% of assisted cases as measured by effective decisions, satisfactory settlements, effective redress, revisions to practice and to have cases concluded within 12 months of LFC approval of assistance. 3.2 As noted above, of the 6 cases which ran to hearing in the Tribunals 3 were upheld and 3 were dismissed. There are, as yet, no published figures of success rates in the Tribunals for the year April March However, success rates for claimants in the Tribunal as published in previous OITFET annual reports are notoriously low. The most recent figures available are for the year April 2011 to March Of the 131 discrimination cases that proceeded to hearing in the Industrial Tribunal (IT) only 11 were successful. The prospects for claimants were also poor in the Fair Employment Tribunal (FET) where, during 11-12, 27 cases ran to hearing and only 1 was successful. Claimants are more likely to be successful at hearing if their case is assisted by the Commission. There are no published figures available for County Court discrimination cases. 3.4 In addition to decisions, the Commission has secured a significant number of settlements. In all of the settled cases the Commission achieved appropriate compensation in line with Vento guidelines and in consideration of the general nature of the case; statements of commitment to equality principles; agreements to liaise with the ECNI to review policies, practices and procedures where it is appropriate to do so; additional clauses as relevant eg an apology or work reference or reasonable adjustments to premises or working practices. None of the settlements included gagging clauses on the Commission, although some agreements included restrictions on individuals speaking to the media about the case if it was in their interests and the Commission s interests to do so. 5

6 3.5 In line with the Policy for the Provision of Legal Advice and Assistance and the Commission s staged approach to granting assistance, the Commission withdrew from cases in circumstances where the statutory grounds or discretionary factors no longer applied. Typically this occurred where Counsel s opinion was that the case did not enjoy a reasonable prospect of success or where the applicant failed to co-operate with the Commission. This has been an effective approach in the management of public funds expended in casework. 3.6 All new cases commenced within the period were either concluded or scheduled to conclude within a 12 month period. This is greatly aided by the approach of the Tribunal to case management and timetabling of litigation. There are some historical cases which remain to be concluded for the following reasons the Commission is pursuing enforcement of compensation; and two matters have been stayed pending High Court action, in which this Commission is not involved. 85% of all cases supported by the Commission were concluded within 12 months of assistance either by settlement, decision or withdrawal of assistance. Only 3 separate actions (on behalf of 13 people) took longer than 12 months to conclude. 4. Cases Currently Assisted. 4.1 The Commission is currently assisting 76 cases. In addition Legal Officers are advising a further 73 claimants who have lodged proceedings and have applied for Commission assistance. The nature of complaint across each of the equality areas varies. With regard to disability, the protection of rights to access goods facilities and services has become well established and supported. The Commission is also supporting a number of employment issues for disabled people in relation to terms and conditions of employment and reasonable adjustments. With regard to gender, harassment in the workplace and pregnancy discrimination, are the biggest issues. With regard to religion and politics most complaints are on employment issues, in particular failure to appoint / promote and the working environment remain areas of concern. The profile for race cases shows a spread of complaints across the spectrum of employment and service 6

7 issues. The Commission is currently supporting a number group actions taken by Irish Travellers. The assisted age cases relate to non appointment, dismissal and redundancy. Age discrimination law is restricted to employment and training matters at present. At present the Commission is assisting only one sexual orientation case. 4.2 The grant of assistance is provided on an in-house basis. The Commission staff carry out all investigatory legal work, draft pleadings and witness statements, attend case management reviews and directly instruct Counsel to prepare opinions and present the cases in tribunal or court. 5. Highlighting protections and publicising outcomes Information on case outcomes. 5.1 The Commission continues to publish an annual Decisions and Settlements Review. This provides summary information of Commission assisted cases which were concluded within the year. The tenth edition is currently in preparation. 5.2 In addition the Commission publicizes its casework outcomes in professional and specialist legal journals and cases have been reported or commented upon this year in IDS Review and Discrimination Law (DLA) Briefings and in the Legal-Island Updates. A number of cases have also been referred to in legal blogs; most recently in Michael Rubenstein Presents 5.3 Work was carried out by the Division, in conjunction with the Commission s Communications team, to raise the profile of case outcomes in the media. Settlements and decisions were widely reported in press, television, radio and on-line media. During the year nine cases were selected for media promotion making up 17 % of the overall coverage obtained by the Commission. Transparency in complainant assistance. 5.4 The complainant assistance section on the ECNI website will shortly be refreshed. This explains how individuals can apply for assistance and the process by which the Legal Funding Committee determines assistance. It also contains statistics 7

8 on enquiries, applications for assistance granted refused and reviewed and is updated at the year end. 5.5 A leaflet entitled Equality Commission Assistance with Discrimination Cases: Frequently Asked Questions details the assistance provided by ECNI. It is available on the Commission s website and is forwarded to all assisted claimants, Counsel who are briefed by the Commission, solicitors who refer cases to the Commission, the Labour Relations Agency and the Office of the Industrial Tribunals and the Fair Employment Tribunal. It is prominently displayed in the Tribunal Offices in Killymeal House. 6. Partnership working. 6.1 Legal staff have contributed to various outreach programmes aimed at building the capacity of other advisors to recognise discrimination issues, to refer appropriately and to consider enforcement options. We have continued to work with the Citizen s Advice Bureau, Advice NI and NI Employment Lawyers Group. In addition we have contributed to the PETAL Programme which is a certified training course aimed at building expertise of trade union representatives; and to the joint ICTU-Migrant Workers Forum. The Commission s legal team hosted a Legal Platform event Treated Unfairly while was well attended by a range of NGOs and other advisory bodies. 7. Service to Clients. 7.1 An independent customer satisfaction survey was commissioned and carried out by IPSOS MORI in The focus of the survey was on satisfaction with initial Discrimination Advice Service. The results were very positive. 79% of respondents said it was easy to find out about the service. 85% respondents were satisfied with contact process. 87% of respondents found the Discrimination Advice Officer helpful. 82% of respondents found the website and discrimination complaints pack useful. There was an overall satisfaction rating of 81%. Compared to the previous survey in 2007, the internet is now much more widely used to help enquirers. While there are positive views about all information provided, the website is perceived as more useful, informative 8

9 and helpful in terms of contextualizing problems. Respondents were given the opportunity to made suggestions for the service. An action plan, based on survey results will be compiled and implemented in the coming business year. Anne McKernan Director Legal Services 14 June