Recommendations by the employment tribunal

Posted Friday 21st June 2019

Under the Equality Act 2010, the employment tribunal has the power to:

• make a declaration of the rights of the parties involved;
• order the respondent to pay compensation to the complainant; and/or
• make a recommendation.

In a recent claim (which dates back to 2015) by a former Qatar Embassy employee, such a recommendation was made (together with an award of compensation and costs) following the employment tribunal’s finding that the complainant had been racially harassed by one of the embassy’s diplomats, and that his dismissal was an act of direct race discrimination.

Historically, legal actions against embassies were rare, due to diplomatic immunity protection. However, two supreme court judgments in 2017 established that diplomatic immunity in employment cases had to be limited to prevent human rights abuses and to protect employees’ right to a fair trial. In the recent Qatar Embassy case the employee was physically assaulted and called a “black slave”, “donkey” and a “dog”. The case is one of the first discrimination claims against an embassy to proceed to final hearing.

The tribunal made a recommendation that the Embassy should provide equality and diversity training for all staff, including diplomats. This type of recommendation is not dissimilar to mandatory training requirements in certain jurisdictions, for example in New York State and California where employers are obliged to provide anti-harassment training to all employees.

In other UK cases, tribunals have recommended that the employer:

• introduces an equal opportunities policy
• ensures its policies are more effectively implemented
• sets up a review panel to deal with equal opportunities, harassment, and grievance procedures
• re-train staff on diversity and inclusion
• makes public the selection criteria used for transfer or promotion of staff

If an employer fails to comply with a tribunal recommendation without reasonable excuse, the tribunal can either make an award of compensation or where compensation has already been awarded, increase that award.

The tribunal power to make recommendations was limited in 2015 (after the facts of the above case) to the effect that recommendations can only be made if they are for the benefit of the employee concerned. This means that recommendations will only be made in situations where the claimant bringing the claim remains employed by the respondent.

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This article is for reference purposes only. It does not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking or deciding not to take any action.

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