EHRC's Race Legal Support Fund follows previous schemes such as providing support to disabled people who have experienced discrimination as well as those who have been discriminated against by education providers and transport operators.
The primary function of this fund is to finance lawyers representing victims of racial discrimination 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.
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As many victims of racial discrimination lack the financial resources to take organisations to court, the intention of the fund is to remove this barrier by providing money to pay lawyers to pursue the claims on victims' behalf.
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.
To date, the fund has been used to support a range of race discrimination claims, not just relating to employment. In both recent cases, it was provided to carry out some initial scoping work into each of these claims.
EHRC have confirmed that they will consider a number of aspects when reviewing whether or not to provide funding to individuals, including whether cases are being brought within time, their merit, the availability of alternative funding sources for the individual, wider societal impact and whether the case could advance an interesting point of law.
What do employers need to know about this fund? Will it stimulate change?
The fund should not be seen as a removal or replacement of any obligations employers have to ensure their employees are not victims of discrimination.
However, it does provide a shift of focus for the regulator, which had previously earmarked funding exclusively for people with disability discrimination claims.
This will result in employers needing to prioritise race and ethnicity issues, rather than just focusing on gender and disability as key areas to improve diversity and inclusion (D&I).
It is clear that the EHRC wants to hold employers who may have breached the law accountable and it is important to note that the commission has a range of litigation and enforcement powers which go beyond the race fund. These include carrying out investigations under the Equality Act 2010 and serving unlawful act notices.
Under its legal powers the 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.
While the EHRC's aspirations are a step in the right direction, it’s unclear whether the race fund is sufficient enough to be truly impactful, or whether the EHRC will continue to rely on their other enforcement and litigation powers.
Rather than encouraging stressful litigation, it may be more prudent for the EHRC to work with employers and direct them on how they can improve culture and behaviours through agreed action plans, and hold them to account on this point.
Ranjit Dhindsa is head of employment at Fieldfisher
