In 2017 the extremely important Supreme Court decision of Essop v Home Office was determined that clarified and to some extent, simplified indirect discrimination law for all UK workers. The issue in the case was it is alleged that the Home Office’s internal staff promotion policy place workers over the age of 35 and workers of non-white racial groupings at a material disadvantage.
Following the Supreme Court decision the case was remitted to the Employment Tribunal. PCS Union, which together with Prospect, brought the discrimination case has reported that that case has after over seven years has settled whilst hearings were in progress for over £1 million:
Employment Tribunal claims were initiated against the Home Office, claiming indirect discrimination and arguing that the CSA was nothing more than an extra hurdle used to sift out BME and older workers.
The Home Office disputed these claims until the day before the Tribunal hearing, when it supplied a series of internal and confidential reports to Thompsons and the unions, one of which agreed that the CSA unjustifiably treated BME and older workers unfairly.
The Home Office then agreed part way through the Tribunal hearing to settle the claims, without admission of liability, and to pay the claimants compensation totalling more than £1 million.
Kate Lea from Thompsons Solicitors said: “While the settlement represents a fantastic result for each claimant and the union, it….defies belief that the Home Office knew of the internal findings yet decided to only disclose them the day before the tribunal hearing. The Home Office’s failure to cooperate until the very end caused an avoidable and costly legal battle – wasting time and taxpayer’s money.”
This is a fantastic result for PCS which follows the recent £3 million settlement the union obtained against DWP for breach of contract and an excellent example of why every civil servant should join PCS.
The case is one in which I had some very minor involvement, involved enough so I know just how much work PCS other PCS reps and members put into not only running this case but getting the case off the ground in the first place – congratulations to everyone involved.
The Data Protection Act 2018 has broadly been described as a positive re-inforcement of the data rights of individuals, including workers. This is a fair summary but it is not a completely positive development in that the Act has actually curtailed the rights of an worker to see what their employers and former employers have written about them and provides cover for unscrupulous employers to evade their accountability for discriminatory conduct.
Before explaining why it is helpful to recap on how one category of victimisation claim presents itself, by means of a hypothetical scenario. A worker has been subject to discriminatory behaviour by an employer, perhaps complaining about how a colleague sexually harassed them. After the employer conducts and whitewashes an internal investigation the worker resigns in disgust at the employer’s failure to confront endemic sexual harassment in their organisation. The worker is not however keen to pursue a sexual harassment case and just ones a fresh start at a new employer.
She applies for many positions, for which she is well qualified, but despite performing well at interview is never offered a job. She suspects that her former employer has provided an unfair reference, perhaps alleging performance or misconduct issues that have put off potential employers in retaliation at her for having made a complaint of sexual harassment. In fact, that is precisely what the former employer was done.
Under the old Data Protection Act (1998) if this worker made a subject access request for a copy of any references the former employer could (I think unreasonably) refuse to provide these but this get out did not apply to the employer’s a worker made an application to so that a copy of the reference and the retaliatory negative reference could be obtained. With that evidence in hand the worker’s suspicion of unlawful and discriminatory victimisation has a solid basis in evidence and she can be more comfortable that she has a good case of victimisation against her former employer under the Equality Act 2010.
However, under the Data Protection Act 2018 – paragraph 24 of Schedule 2 to be precise – both former and prospective employers are explicitly told they can refuse to provide a worker a copy of a confidential employment reference without any other proportionality considerations needing to be considered. So now a worker who thinks their former employer has unlawfully discriminated against them by providing an inaccurate and vindictive reference to a former employer on the basis of that employee having had the temerity to challenge for employer about how it discriminated its staff finds themselves hamstrung.
While they can of course still claim discrimination they will be much less likely to be confident bringing such a claim when their only evidence is their gut feeling that something is amiss which will inevitably mean good cases are not brought and bad employers will evade scrutiny. For workers subject to post-employment victimisation from former employers at least the Data Protection Act’s plaudits of advancing employee’s data protection acts ring hollow.
To date there has been no reported decisions (that I have been able to find) on the compatibility of the reference caveat to subject access requests with human rights or the GDPR itself. Hopefully the harshness will in due course be mitigated or Parliament will see sense and repeal paragraph 24 of Schedule 2 of the DPA 2018.