Maria Chadwick, partner and Discrimination department manager at Stephensons Solicitors, explains how registered providers should manage complaints of discrimination, outlining steps to ensure any issues are resolved as quickly and as cost effectively as possible
Social housing providers will be aware that, as organisations that carry out public functions, the terms of the Equality Act 2010 apply to them.
As a social housing provider, it’s vital to know your obligations to service users under the Equality Act 2010. The act legally protects an individual or individuals from being treated unequally and discriminated against on the grounds of one or more of the protected characteristics defined by the act. These are:
- Sexual orientation
- Marital Status
- Pregnancy or maternity
- Gender reassignment
- Religious beliefs
Discrimination allegations can stem from an individual feeling they have been treated unfavourably directly and, in the case of disability, as a result of their protected characteristic. For example, a service user with impaired mobility might complain that they have not been given the correct allocation banding to enable them to bid for or apply for accommodation suitable to their needs.
If direct discrimination is alleged, it can also lead to additional claims of harassment.
Social housing providers should also be mindful that the stringent application of inflexible policies, criteria or practices, which could be considered to be detrimental to an individual due to their protected characteristic, can give rise to claims of indirect discrimination.
Common complaints of indirect discrimination relate to the application of policies, such as only assigning maintenance and repair contracts to limited contractors. Service users could be detrimentally affected if the preferred contractors are unable to meet working demands, therefore causing delays to repairs.
Service users with disabilities which can be proven to have been exacerbated as a result of the disrepair, and the delay in carrying out works, can be considered to have a valid complaint if the policy has been applied inflexibly.
In these circumstances, further claims for Failures to Make Reasonable Adjustments can be brought.
Equality Act obligations
As an organisation, you will be held responsible for the acts of your employees. While claims of discrimination, commonly those of harassment, include claims against an individual perpetrator, it is common practice for County Court proceedings to be issued primarily against the organisation that employs them.
“While claims of discrimination include claims against an individual perpetrator, it is common practice for County Court proceedings to be issued primarily against the organisation that employs them”
It is imperative to ensure all employees are provided with specifically tailored equality and diversity training at the commencement of their employment and at regular intervals thereafter. This will assist in ensuring that all employees are aware of your obligations to service users and will therefore best protect your position.
Dealing with a discrimination claim
- Complaints and escalated complaints to regulatory bodies
You will likely be first notified of a potential discrimination claim by a formal complaint from a service user, received directly or via your regulatory body or the Housing Ombudsman.
You should immediately acknowledge the complaint and commence a thorough and detailed investigation of the matter. Taking urgent action, keeping the service user updated as to the progress of the investigation, and providing a detailed response can lead to a swift resolution.
If an acknowledgement of and/or a formal response to the complaint is not forthcoming, then it is likely that the service user will escalate the matter through the instruction of a solicitor and start legal proceedings.
- A legal Letter Before Action
If legal proceedings are intended, claimants are required to send a detailed letter setting out the acts of alleged discrimination in full, the relevant law relied on, and the remedies they are seeking.
This is required by the courts to give the parties the opportunity to resolve the issues involved without court proceedings becoming necessary.
You should be given a reasonable opportunity to respond to this letter, usually 21 days. However, extensions of up to 90 days to allow for a thorough investigation (also giving you the time to seek specialist legal advice) can be agreed.
If you fail to engage at this stage by providing a delayed response or by notfully responding to the allegations raised, the service user will likely issue court proceedings.
Short deadlines for a discrimination claim to be issued in the County Court are applied strictly.
A claimant must issue their claim in the County Court within six months, less one day of the alleged discriminatory act (if it is an isolated incident) or the last act of discrimination (if there has been an ongoing series of alleged discriminatory acts).
This short limitation period will force the issue of proceedings, which can only be best avoided through urgent action being taken to resolve the matter in the early stages.
The Equality Act 2010 is extremely complex and relatively new legislation. It is therefore somewhat untested. You should seek the advice and assistance of a specialist legal firm immediately on receipt of a Letter Before Action.
At the complaint investigation stage, gather your evidence. This can include all related correspondence you have had with the service user, tenancy agreements, records, and notes of verbal discussions with the service user; CCTV footage of any incident alleged; and conducting investigatory meetings with all employees who are the subject of the allegations or who may have witnessed the alleged incidents.
This will help your legal representative decide the best course of action to take in potentially defending a County Court claim or, if necessary, pursuing a resolution through an out-of-court settlement.
Image: Maria Chadwick, partner and Discrimination department manager at Stephensons Solicitors
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