Continuing my mini-series on the forthcoming Single Equalities Bill and what the final Act should contain, I do not think the courts that deal with discrimination have enough powers to really put an end, or even significantly dent, discrimination.
Since claims are brought by an individual, the courts can only look at what wrong that individual has actually suffered and seek to compensate them for this through damages.
Whilst the court discrimination awards are unlimited and can include ‘hurt to feeling’, in certain cases this quite simply isn’t enough and amounts to no more than a small financial slap on the wrist. I am thinking about real systematic discrimination that is low level and done on a large scale – say for example – a chain of hotels that will only let gay couples have rooms on the top floor for example.
The narrow, direct damage suffered by the individuals is relatively small. The ‘hurt to feelings’ award might bump it up a bit, but the hotel could make a calculated decision that it could afford it.
What if in a case like this the court could award punitive damages? When making an award for damages, it could look beyond the individual in front of it and consider how many people might be affected and whether the defendant has done anything to change its ways.
And say if on the third or fourth case against this chain, the court decided a stronger message needed to be made.
Case law is developing in this directly with the advent of exemplary damages, but this is only in a limited set of circumstances (when the defendant is an agent of government or when the defendant has made a calculated risk that it is more profitable to discriminate – which is not the case is the example I gave as some might discriminate even if it is unprofitable).
I’m increasingly of the view that we should accelerate the pace of change, and that therefore this aspect of the current law needs to be looked at. The Single Equalities Bill will certainly provide an opportunity to move matters along in this regard.