EHRC's legal fund for tackling race discrimination: What employers need to know

Following the equalities regulator's announcement that it would make funding available to legal representatives of victims of racial discrimination, Fieldfisher's Head of Immigration Ranjit Dhindsa considers how the new fund is bedding in and what employers should do in response.

What is the EHRC Race Legal Support Fund?

On 23 November 2021, the Equality and Human Rights Commission (EHRC), the UK's equality regulator, launched a new legal fund to tackle race discrimination.

The unveiling of the fund came in the wake of the racism scandal at Yorkshire County Cricket Club, in which an investigation found that Azeem Rafiq, a former professional cricketer of Pakistani heritage, had been the "victim of racial harassment and bullying" during his 10-year career at the club.

Since December 2021, EHRC's Race Legal Support Fund has been available to lawyers representing victims of racial discrimination to fund their work to secure justice for their clients.

Open for a minimum of two years, EHRC said it expected the fund to pay out £250,000 in its first year to tackle race discrimination, harassment, and victimisation, with more funding available in future years.

Why was the fund considered necessary?

While the Yorkshire Cricket Club scandal provided a poignant backdrop for the new fund, EHRC had previously decried the lack of legal funding support available for victims of discrimination.

In June 2019, EHRC published the findings of an inquiry into legal aid cuts, which concluded that victims of unlawful discrimination were increasingly being prevented from enforcing their rights because of cuts to legal aid.

In 2017, the regulator had made a similar fund available for victims of disability discrimination.

On launching the EHRC Race Legal Support Fund, Baroness Kishwer Falkner, Chairwoman of the EHRC, said that organisations, from sports clubs to workplaces, were failing to protect ethnic minorities from prejudice and race discrimination in their everyday lives – i.e., were breaking racial equality law.

As many victims of racial discrimination are 'normal' people who lack the financial resources to take organisations to court, the fund is intended to remove this barrier by providing money to pay lawyers to pursue the claims on victims' behalf.

EHRC's Race Legal Support Fund follows previous schemes providing support to:

• Disabled people who have experienced discrimination; and
• Those who have been discriminated against by education providers and transport operators.

Members of the public who have experienced discrimination cannot apply to the fund directly, but instead are encouraged to contact the Equality Advisory and Support Service (EASS) who can provide information, advice and support.

How has the fund been used to date?

The EHRC has confirmed that together with the Professional Footballers Union in Scotland (PFA Scotland) they are supporting footballer Rico Quitongo in his race discrimination claim against his former club and a club director.  The claim follows an alleged incident of racism against Mr Quitongo by a supporter during a match in September 2021.  It arises from the way the issue was subsequently handled by Airdrieonians FC.  He alleges he experienced racial harassment and victimisation.

The EHRC are also considering a case relating to a black British shop worker who resigned after he was disciplined for taking too much sick leave.  Funds are being used to get Counsel's opinion about the merits of a legal claim.

What do employers need to know about this fund?

It is against UK law to discriminate against someone because of their age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and/or sexual orientation. These are called protected characteristics.

While the EHRC Race Legal Support Fund does not in any way alter the obligations employers have to ensure employees are not discriminated against within their organisations, it is a shift of focus for the regulator, which had previously earmarked funding exclusively people with disability discrimination claims.

This means that employers will also need to prioritise race and ethnicity issues, and not just focus on gender and disability as key areas to improve inclusion and diversity (I&D).

EHRC has confirmed it will consider the following when reviewing whether or not to provide funding to individuals:

• Are the cases being brought within the specified time limit (note, these can vary depending on the circumstances of the claim)?
• Do they have a demonstrable legal merit?
• Are there alternative sources of funding available to the individual?
• Will the case advance a novel or interesting point of law?
• Will the case achieve wider societal impact?

Clearly, EHRC's aim is to hold to account employers who may have breached the law and promote greater equality and freedom from discrimination for people of different racial backgrounds in the UK.

What other Powers does EHRC have?

It is important to note that the EHRC has a range of litigation and enforcement powers that go beyond the race fund.

It can:

• Carry out investigations where they suspect unlawful acts have been carried out under the Equality Act 2010;
• Serve unlawful act notices;
• Require action plans to be completed; and ,
• Enter agreements with employers who have been found to have discriminated against employees, to prevent discrimination in the future.

Under its legal powers, EHRC can carry out strategic litigation, which could include applying for injunctions, providing legal assistance to individuals bringing a variety of claims, intervene in cases and apply for judicial review.

Conclusion

Whilst the EHRC's aspirations are laudable, it remains to be seen whether the race fund is sufficient to make any significant impact, or whether the regulator will have to continue to rely on its other enforcement and litigation powers.

It may be more helpful, and deliver swifter and more amicable outcomes, to work with employers on how to improve culture and behaviours through agreed action plans, rather than encourage litigation which is costly and stressful for all concerned.

This article was authored by Ranjit Dhindsa, Head of Employment, Pensions, Immigration and Compliance at Fieldfisher.