Anne McKernan: Does taking a discrimination case really change anything?
Anne McKernan, head of legal services at the Equality Commission for Northern Ireland, considers whether a discrimination case before the courts can really lead to change.
The answer is yes – it can do. And almost everyone who successfully resolves their case with our help, whether it’s a decision or a settlement, believes that by telling their story and openly challenging discrimination, they can stop the same thing happening to anyone else.
I believe that most people don’t actually want to sue anybody, they just want to be treated fairly and equally. And to me, it’s really important that people understand their rights, know that discrimination can be challenged and how to challenge it.
When our legal funding committee discusses whether or not to support a case, we take a strategic approach to decision making. Ultimately, we are aiming with strategic litigation to raise awareness of rights and responsibilities under discrimination law, challenge discriminatory practice and to ensure that policies and procedures of employers and service providers comply with the law.
Sometimes, it’s an unusual case that shines a light on an unexplored corner, for example, the case of Maria McKeith, whose employer believed her place was at home with her disabled daughter. Maria in fact valued her part-time job and had arrangements in place to care for her daughter when she was at work. She was actively prevented from coming to work and ultimately dismissed because of her employer’s preconceptions. The finding here was associative disability discrimination and she received damages of almost £19,000. This was the first time the NI courts applied the guidance of the CJEU regarding associative disability discrimination.
Another one was Dr Alan Lennon OBE, who applied for the post of Chair with NI Water. He was not successful and challenged the public appointment process, winning his religious discrimination case with our support. Dr Lennon specifically said at the time that he took the case primarily to challenge what he believed to be serious flaws in the public appointments system. At the time he noted that “commitments have been made by the Department of Regional Development to review these processes and it is vital for public confidence in government in Northern Ireland that this case acts as a springboard for change. I hope that this will result in a more transparent and equitable public appointments process.” We supported this case to establish that public appointments, including those which involve the exercise of a Minister’s discretion, are fully within the protection of anti-discrimination laws.
These are high profile cases that made fundamental differences to how things can be done. A small number of cases such as these resolve uncertainty and go on to clarify the law. The vast majority of cases that go to court or tribunal rely on established case law. For us, the ‘ripple effect’ from any resolved case is important, it’s the learning from it, both by members of the public and by employers and service providers that matters to us.
A recent case such as that of Zack Gordon, who was not allowed to use trampolines at an adventure park because of his prosthetic legs, is worth doing because it shows the effect of a company’s decision on a lively boy who lives life to the full. It is a way of reminding disabled people of their rights, raising awareness and showing positive images of disability. We stressed that the focus of service providers needs to be on what a disabled child can do, not what they can’t do. And we stressed that the law imposes a proactive duty on service providers to consider how disabled people can have the same access to services as people without disabilities.
All of the 4,000+ people who came to us last year with complaints of discrimination were given expert advice and information but only a small percentage (7.6%) applied to us for help to take cases to court or tribunal.
Not all unfair treatment is unlawful. But if you feel you’ve experienced discrimination on grounds of age, disability, gender, race, religious belief/political opinion and/or sexual orientation, please call the discrimination advice line, email us, direct message us on Twitter or Facebook for advice and information. This service is entirely free and confidential.
- Anne McKernan is head of legal services at the Equality Commission for Northern Ireland.