Non-compensatory awards
An employment tribunal will usually award compensation if a discrimination complaint succeeds, but it can also also make a declaration or recommendation. A declaration is an order declaring the rights of the parties in relation to the matters to which the proceedings relate. A recommendation can be made that within a specified period the respondent takes specified steps of obviating or reducing the adverse effect of any matter to which the proceedings relate on the complainant. It has been recognised that tribunals have a wide discretion to make recommendations. In Chief Constable of West Yorkshire Police v Vento (No.2) [2002] IRLR 177 EAT (decided under the now repealed Sex Discrimination Act 1975), the Employment Appeal Tribunal (EAT) upheld a recommendation that the Deputy Chief Constable should interview named police officers and discuss with them relevant parts of the decisions of the employment tribunal and the EAT on liability. In London Borough of Southwark v Ayton EAT/515/03 (decided under the now repealed Race Relations Act 1976), the EAT upheld an employment tribunal's recommendation that, within three months, Southwark should arrange awareness training for an employee held to have victimised the claimant.
If a respondent fails, without reasonable excuse, to comply with an appropriate recommendation, compensation may be increased (or awarded, if no award was originally made).
Prior to 1 October 2015, provisions in the Equality Act 2010 gave employment tribunals the power to make wider recommendations that might have benefitted others, and not just the claimant personally. Section 2 of the Deregulation Act 2015 repealed employment tribunals' wider recommendation powers with effect from 1 October 2015. Employment tribunal proceedings that were commenced before 1 October 2015 are not affected by the repeal, and an employment tribunal can still exercise the power to make wider recommendations in respect of those claims.
Recommendations are rare in practice but are made in appropriate cases.
In St Andrews Catholic Primary School and others v Blundell EAT/0330/09 (decided under the now repealed Sex Discrimination Act 1975), the EAT altered the terms of a letter of apology that the tribunal had recommended that the employer write to the employee, stating that such a letter should not require a person (namely, the employee's former head teacher) to make statements with which she did not agree.
In Lycée Français Charles De Gaulle v Delambre EAT/0563/10, the EAT refused to interfere with the wide-ranging recommendations that the employment tribunal had made with a view to assisting the employer to effect what the tribunal considered to be the necessary "complete change of culture, beginning at the top and cascading down through the organisation".
In Stone v Ramsay Healthcare UK Operations Ltd ET/1400762/2011, the employment tribunal stated that the employer had been "wilfully blind to its obligations to pregnant employees and those on maternity leave - both in terms of statute law and its own polices". It went on to recommend that the employer appoint external consultants to implement a training programme for all managers and the HR team on its existing maternity policies and legal obligations during the "protected period" of maternity leave under the Equality Act 2010 and that it redraft its equal opportunities policy to include pregnancy and maternity as a protected characteristic.
In Crisp v Iceland Foods Ltd ET/1604478/11 & ET/1600000/12, the employment tribunal recommended training for HR staff on "disability discrimination matters relating specifically to the issue of mental health disability" and general disability discrimination training for managers, having found that "senior managers including those in human resources" had demonstrated "such a lack of understanding of disability issues".
In Fhima v Travel Jigsaw ET/2401978/14, a religious discrimination case, the employment tribunal recommended that, within 12 months, the employer provide its management team with additional diversity training and review its diversity policy to ensure that it was compliant with the Equality Act 2010.
Recommendations cannot be made in an equal pay case (s.113(6)).