Courts and tribunals and the Equality Act 2010

The Equality Act has introduced a number of new provisions amending and extending the powers of the employment tribunal and county or sheriff courts.

Time limits

It is worth noting that time limits under the Equality Act vary according to the venue.

Section 118 provides proceedings under section 114 (in the county or sheriff court) may not be brought after the end of:

1. the period of 6 months starting with the date of the act to which the claim relates, or
2. such other period as the county court or sheriff thinks just and equitable.

unless the claim is referred to the Equality and Human Rights Commission for conciliation, in which case the period is extended to nine months or whatever period the court thinks appropriate.

However, under section 123, proceedings on a complaint within section 120 (in the employment tribunal) may not be brought after the end of:

1. the period of 3 months starting with the date of the act to which the complaint relates, or
2. such other period as the employment tribunal thinks just and equitable.

Note also that, in relation both to the county and sheriff court and to the employment tribunal:

• conduct extending over a period is to be treated as done at the end of the period; and
• failure to do something is to be treated as occurring when the person in question decided on it.

and that in the absence of evidence to the contrary, a person is to be taken to decide on failure to do something when that person does something inconsistent with doing it or on the expiry of the period when that person might reasonable have been expected to do it.

Power to make recommendations

Section 124 extends the powers of employment tribunals. Under the Equality Act, a tribunal can now make an order not only in favour an applicant and in relation to a particular matter which is before that tribunal but can also make an appropriate recommendation that, within a specified period, the respondent takes specified steps for the purpose of obviating or reducing the adverse effect of any matter to which the proceedings relate on the complainant and on any other person.

Burden of proof

Section 136 has regularised the position as to the burden of proof in discrimination cases. It provides that, except in relation to proceedings for an offence under the Equality Act (where the criminal burden of proof will apply), if there are facts from which the court could decide, in the absence of any other explanation, that a person contravened a relevant provision, then the court must hold that the contravention occurred unless the person can show that they did not contravene the provision.