Any organisation carrying out a public function and/or a service provider under the terms of the Equality Act 2010 needs to be aware of how to deal with complaints of discrimination raised by service users.
What to do if you receive a complaint
If you do receive a complaint, there are some steps which can be taken to ensure that the matter can be resolved as quickly and cost effectively as possible.
Do you know your obligations to service users?
Discrimination is the unequal treatment of an individual or individuals on the grounds of one or more of the protected characteristics as defined by the Equality Act 2010. The protected characteristics are:
- Sexual orientation
- Marital status
- Pregnancy or maternity
- Gender reassignment
- Religious beliefs
Individual service users are protected against such treatment which can be linked to one of the above characteristics and causes a detriment to them in comparison to others who do not hold it.
Allegations of discrimination can stem from an individual feeling that they have been treated unfavourably directly as a result of their protected characteristic. If direct discrimination can be proven then this can also justify claims of harassment under the act.
However, you must also be mindful that the stringent application of inflexible policies, criteria or practices across your client base, which can be considered to cause a detriment to an individual as a result of their protected characteristic, can give rise to claims of indirect discrimination. In cases of disability discrimination this can also include claims for failures to make reasonable adjustments.
How to respond to a discrimination claim
Do all of your employees know your obligations under the Equality Act?
As an organisation, you will be held responsible for the acts of your employees.
Whilst claims of discrimination are likely to incorporate claims against an individual perpetrator, it is common practice for County Court proceedings to be issued primarily against the organisation by whom they are employed and represent.
It is therefore imperative that you ensure that all of your employees are provided with specifically tailored equality and diversity training. It is recommended that this training is given at the commencement of their employment along with refresher training on a regular basis thereafter, with a view to ensuring that all employees are aware of your obligations to service users and therefore best protecting your position.
How you may be notified of a potential discrimination claim and how to respond
It is likely that you will be first notified of a potential discrimination claim by way of a formal complaint from a service user.
Should this be the case then it is important that you immediately acknowledge the complaint and commence a thorough and detailed investigation of the matter. Taking urgent action, keeping the service user updated as to the progress of the investigation and providing a detailed response can lead to the swift resolution of the matter.
If an acknowledgement of and/or a formal response to the complaint is not forthcoming then it is likely that the service user will escalate the matter. This could result in the submission of a formal complaint to the relevant regulatory body or ombudsman or alternatively, the instruction of a solicitor with a view to commencing legal proceedings.
Escalated complaints to regulatory bodies
If you receive a notification of an escalated complaint from your regulator, it is again imperative that you acknowledge the complaint, thoroughly and formally investigate it and respond without delay.
A legal letter before action
If the issue of legal proceedings is intended, claimants are required by the courts to follow what is known as the pre-action protocol. This requires the claimant to send a detailed letter setting out the acts of alleged discrimination in full, the relevant applicable law and the remedies which they seek from you.
The aim of the protocol is to give the parties the opportunity to resolve the issues involved without it becoming necessary for court proceedings to be issued.
You should therefore be given a reasonable opportunity to respond to this letter. Claimants will usually request a substantive response to their proposed claims within 21 days. However, extensions of up to 90 days, to allow for thorough investigation, (also giving you the time to seek specialist legal advice), can be agreed, in accordance with the protocol.
You must engage fully in the spirit of the protocol, namely resolution. If you fail to do so by providing a delayed response or failing to substantively respond to the allegations raised, the service user will likely issue court proceedings.
What are the next steps?
Short deadlines for discrimination claims to be issued in the County Courts are applied strictly.
A claimant must issue their claim in the County Court within six months less one day of the alleged discriminatory act, (if it is an isolated incident), or the last act of discrimination (if there has been an ongoing series of alleged discriminatory acts).
You should anticipate the actions of the claimant. The strictly applied limitation period will force the issue of proceedings and this can only be best avoided through urgent action being taken to resolve the matter in the early stages.
The Equality Act 2010 is an extremely complex piece of legislation. It is relatively new in it’s application and is relatively untested. It is therefore recommended that you seek the advice and assistance of a legal firm specialising in this niche area of the law immediately upon receipt of a letter before action.
You should ensure that at the complaint investigation stage, you gather all relevant information that you hold which relates to the complaint. Gather your evidence. This can include collating all related correspondence you have had with the service user in respect of their engagement with you; notes of employees; CCTV footage of any incident alleged and; conducting investigatory meetings with all employees who are the subject of the allegations raised or who may have witnessed the alleged incidents.
Such action will assist you in your initial responses to the service user and will assist your legal representative in reaching a conclusion as to the course of action to be taken in potentially defending a County Court claim or pursuing resolution of the matter through an out of court settlement if necessary.