Resources for discrimination advice
A how to guide on why every adviser should be giving discrimination advice and how our discrimination toolkits can help them
In 2019 Citizens Advice and Citizens Advice Scotland published new toolkits on discrimination in housing and discrimination at work. The Equality and Human Rights Commission commissioned the toolkits, which are available to the public as well as advisers. The new content was created by the Content and Expert Advice Teams at Citizens Advice in a year long project.
The new advice has a clear journey and both toolkits include practical tools such as example letters and witness statements.
The toolkit pages are:-
Employment discrimination Toolkit
Checking if it’s discrimination
- Check if your problem at work is discrimination
- Check if you’re disabled under the Equality Act
- If you’re being harassed or bullied at work
- If you think you’ve been unfairly treated when applying for a job
Taking action
- Asking your employer for changes to help you if you’re disabled
- Deciding what to do about discrimination at work
- Gathering evidence about discrimination at work
- Work out how much compensation you could get for discrimination
- Taking action about discrimination at work
- Get help with discrimination at work
The discrimination section of Adviser magazine includes more detailed information on taking action about employment discrimination, including writing a grievance letter and making a tribunal claim. There are practical tools such as example letters and witness statements.
Housing discrimination Toolkit
Checking if it’s discrimination
- Check if your housing problem is discrimination
- Check if you’re disabled under the Equality Act
- If someone’s harassed you in housing
Taking action
- Asking for adjustments to help with your disability
- Deciding what to do about housing discrimination
- Preparing to challenge your eviction if you’ve been discriminated against
- Gathering evidence about housing discrimination
- Complaining about housing discrimination
- Work out how much compensation you could get for discrimination
- Challenging an eviction with discrimination law
- Taking legal action for housing discrimination
- Get help with a housing discrimination problem
The Toolkits cover England & Wales and Scotland
The content is available in Welsh and any differences in procedure between Scotland, England and Wales are highlighted.
Why did we do this?
Firstly, because we know discrimination and inequality has a huge impact on the lives of our clients and the wider public.
Secondly, we know there is a lack of affordable advice for people who have experienced discrimination.
In 2018, Citizens Advice advised just under 12,000 clients on discrimination issues (11,772). This was 0.8% of all (non anonymous) clients we advised on an issue in the year.
However, it is likely that that the true numbers are much higher, as people often don’t identify or action discrimination rights or failures.
So why is this? What can we do about it? And why should we be giving discrimination advice at all?
Why do discrimination rights exist?
There are many different definitions of Equality the essence being that our common humanity makes us equal in dignity, worth and rights. Everyone has discrimination rights and discrimination protections apply to everyone. But, just saying this does not make it so. Equality law exists to overcome the disadvantage and discrimination experienced in particular by marginalised groups.
In October 2018 the EHRC’s report Fairer Britain found that there have been strides towards equality in the fields of education and money. Yet there had been significant strides backwards in the socio-economic disadvantage experienced by the poor and those in marginalised groups such as disabled people, BAME people, younger or older people and single parent families.
Discrimination law: Key Principles and Practical Application
The Equality Act 2010 covers protections in areas such as:
- Work
- Education
- Housing
- Welfare Benefits
- Services
- Transport
- Health
This article focuses on employment but it’s important to recognise that discrimination rights are relevant to all advice areas. They are important to everyone from a wheelchair using bus passenger (Paulley v First Group Ltd) to a woman experiencing the gendered impact of welfare reform (Adviser 187).
The key principles of discrimination protections are well known. There are 9 protected characteristics:
- disability
- race
- sex
- gender recognition
- religion and belief
- age
- maternity and pregnancy
- marriage and civil partnership
- sexual orientation
There are 6 types of discrimination:
- direct
- indirect
- harassment
- victimisation
- reasonable adjustments
- discrimination arising from disability
Within an employment law context, the common application of these principles include:
- Giving a worker with back pain more rest breaks than other workers to allow them to stand and move away from their desk (as a reasonable adjustment)
- The right not to be selected for redundancy because you are pregnant
- The right not to be sexually harassed
- The right not to be dismissed because you are gay
The barriers to receiving good discrimination advice
The Equality Advisory Service
There is discrimination support available to the public via the Equality and Advisory Support Service (EASS) helpline which provides telephone advice and support, and can write to third parties on behalf of clients. However, the EASS helpline cannot give legal advice.
Those wishing to receive legal advice must either pay for it, seek free advice from a law centre or citizens advice or apply for legal aid.
Legal Aid
The Legal Aid Sentencing and Punishment of Offenders Act 2012 removed legal aid provision for family, employment, welfare benefits and aspects of housing. Affordable or free advice is now carried out by a dwindling and underfunded pool of advisers. In the not for profit sector complex legal advice is often carried out by volunteers.
Discrimination advice is still within the scope of legal aid, but take up rates are not high.
Anyone wanting to access legal aid for discrimination must first go through a gateway service. The Public Law Project briefing paper on the Civil Legal Aid Advice Telephone Gateway noted that a user needed to first demonstrate that they met the financial eligibility test and then give adequate information to the assessor to convince them of the merits of the case before being referred for face to face or telephone advice under the legal aid scheme.
On 19 June 2019 the Equalities and Human Rights Commission (EHRC) reported the conclusion of their two year investigation into the service and access to legal aid.
According to the EHRC 2019 ‘Access to legal aid for discrimination’ report, of the 17,717 calls about discrimination advice 7,769 (43%) were taken on as cases. Of those, 1,646 (9.3%) received casework assistance but only 18 of those received face to face case worker assistance (0.1%) though 43 (2.5%) received funding to cover representation in court.
It is worth noting that the Ministry of Justice LASPO review response — ‘Legal Support Action Plan’ issued in February 2019 says it will remove the mandatory requirements from the telephone gateway for debt, discrimination and special educational needs cases which are already in scope by Spring 2020.
In the context of reduced ‘front line’ services it is not surprising that the number of people self-identifying as experiencing discrimination or seeking assistance on discrimination issues is relatively low. The EHRC in their 2018 report into ‘the impact of LASPO on routes to justice’ evaluated that:
‘It may partly be due to the fact that victims of discrimination often need advice to understand that their employment problems engage anti-discrimination law in the first place (Equality and Human Rights Commission [EHRC], 2016). Without initial legal advice, individuals are less likely to be aware that legal aid is available and may therefore decide not to pursue a claim, even for strong cases that would qualify for legal aid’.
The practical reality is that the lack of self identification alongside the barrier of having to persuade Civil Legal Advice telephone line of a discrimination case before being able to receive advice can potentially act as an insurmountable barrier for many litigants in person and advisers.
Addressing the discrimination advice gap
The advice sector continues to respond to these gaps in advice.
In Adviser 187 Emma Wilkinson wrote about how advisers could use their limited resources to achieve the best outcomes for ‘litigants in person’ and how to assist clients to take claims to employment tribunals themselves. However, this assumes that the problem has been identified and progressed to the actioning stage. To a degree the only solution is to have greater public awareness of discrimination rights and significantly greater numbers of advisers with the skills and training to deliver discrimination advice available to deliver free and / or affordable advice and support.
Resources to help advisers
In addition to Citizens Advice employment discrimination toolkit (including adviser magazine) and housing discrimination toolkit there are some good resources and support targeted at advisers.
The EHRC provide telephone support for advisers giving discrimination advice. They can be contacted on:
England: 0161 829 8190
Scotland: 0141 228 5990
Wales: 029 2044 7790
The Equality and Human Rights Commissions’ website also has many useful resources for advisers, including the Codes of Practice which have statutory force.
Equally Ours have a Practical Equality Rights in Welfare Benefits Advice Handbook which shows how you can identify and use equality and human rights more effectively in welfare benefits advice.
Conclusion
Delivering good discrimination advice remains a key tool for addressing the inequalities in society on an individual and collective level. As advisers we must continue to support and deliver good discrimination advice and support individuals to identify their discrimination rights and take action to enforce their entitlements. Addressing the discrimination advice gap is an ongoing process which we are all a part of and must continue to be so.
Emma Wilkinson works in the Employment Expert Advice Team at Citizens Advice.
