Since the Employment Tribunal and Employment Appeal Tribunal Fees Order 2013 came into effect in July this year, an employee wishing to submit a discrimination claim must pay a fee of £250, and an additional £950 for the case to proceed to a full hearing.
The claimant can apply for a remission of the fee before the application is accepted by the tribunal. But the rules on the remission of fees are complicated.
So far, the introduction of fees has resulted in a significant decrease in discrimination cases of all types. It is evident that fees are acting as a disincentive for individual employees who do not qualify for remission, who cannot afford to take the litigation risk, and who do not have the support of a trade union or third party.
We await the outcome of the Unison challenge to the introduction of fees. The judgment of the High Court in England is expected soon. A challenge to the rules in Scotland has been put on hold by the Court of Session pending the conclusion of the English case.
This is a benefit to employers who have, for many years, viewed discrimination law with considerable suspicion for various reasons.
The first was the complexity of legislation. The introduction of a consolidated statute in 2010 was a significant step forward for employers and employees alike.
Employers are now more aware of obligations that the legislation places on them, and are willing to spend time and money putting robust policies and procedures in place.
The second concern was financial cost. It was widely known among employers that the level of compensatory award was not capped for discrimination actions, as would be the case for unfair dismissal claims.
There was an assumption that defending a discrimination action would be very expensive.
High-profile discrimination claims reinforced this perception by suggesting the claims are frequently won and large sums of money are awarded.
It must be remembered that most of these cases involve highly-paid individuals in the City of London who earn large salaries and annual bonuses.
As the level of award is dependent on the level of loss, the amount of the payment ordered by the tribunal in such occasions can be considerable.
In reality, relatively few claims are won by the claimant because of the difficulty of proof, and the levels of awards are lower than would be expected.
The third concern was a potential damage to reputation.
For many organisations, damage to reputation is of greater concern than any financial consideration. The mere suggestion of a discrimination complaint has, over the years, proved to be a significant disincentive for many employers to engage in conflict.
The temptation to reach for the company cheque book usually prevails.
The degree of importance attached to reputational damage will vary from sector to sector.
Many companies now accept that in a litigious world, discrimination claims are not regarded by clients and the business community in the same way. There can be a benefit from defending such a claim.
The fourth reason was a widespread reluctance to buy into the concepts of equality and diversity which underpin the discrimination legislation at what was considered by many to be the cost of restriction on free choice. The price of fairness was perceived by many to be a practical headache.
The landscape is changing. One indication of such a change can be seen in the practice of employers within Aberdeen to disability discrimination cases. These have overtaken sex and racial discrimination in the number of cases raised.
For many years, employers have struggled to follow the concept and the application of disability discrimination. In contrast, it is now generally accepted by employers that the bar for disability is a low one.
Going forward, the good news for employers is that discrimination cases will be fewer in number. If appropriate training is provided, business decisions are taken for genuine commercial reasons and the reasons for employing, promoting or dismissing are written and kept on file, the percentage of successful cases will reduce further.
As a by-product, this will improve the culture of the organisation.