Equality Act 2010, section 124

Remedies: general

Part 9 Enforcement

(1)This section applies if an employment tribunal finds that there has been a contravention of a provision referred to in section 120(1).

(2)The tribunal may—

(a)make a declaration as to the rights of the complainant and the respondent in relation to the matters to which the proceedings relate;

(b)order the respondent to pay compensation to the complainant;

(c)make an appropriate recommendation.

(3)An appropriate recommendation is a recommendation that within a specified period the respondent takes specified steps for the purpose of obviating or reducing the adverse effect [F136on the complainant F136] of any matter to which the proceedings relate—

F137(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

F137(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(4)Subsection (5) applies if the tribunal—

(a)finds that a contravention is established by virtue of section 19 [F138or 19AF138] , but

(b)is satisfied that the provision, criterion or practice was not applied with the intention of discriminating against the complainant.

(5)It must not make an order under subsection (2)(b) unless it first considers whether to act under subsection (2)(a) or (c).

(6)The amount of compensation which may be awarded under subsection (2)(b) corresponds to the amount which could be awarded by [F139the county courtF139] or the sheriff under section 119.

(7)F140If a respondent fails, without reasonable excuse, to comply with an appropriate recommendation..., the tribunal may—

(a)if an order was made under subsection (2)(b), increase the amount of compensation to be paid;

(b)if no such order was made, make one.

Definitions used in section 124 1

employment

“employment” and related expressions are (subject to subsection (11)) to be read with section 83;

Defined in s.212(1) · see it in the full Act

Cases considering section 124 44

Nicholas Eckland v Chief Constable of the Avon and Somerset Constabulary

[2021] EWCA Civ 1961 · 7 January 2022

The court used the Employment Tribunal’s statutory remedial powers to demonstrate the difference between Part 5 and County Court remedies. (see paras [39]-[40]) The Employment Tribunal’s power to make a declaration was part of the remedial distinction between Part 5 proceedings and County Court proceedings. (see para [39]) The Employment Tribunal’s power to order compensation was part of the remedial distinction relied on in assessing equivalence. (see para [39]) The Employment Tribunal’s power to make an appropriate recommendation was part of the remedial distinction between Part 5 proceedings and County Court proceedings. (see para [39]) The court noted that subsections (3) to (7) supplement the Employment Tribunal’s remedial powers, reinforcing the difference from the County Court’s powers. (see para [39]) The court specifically noted the power to increase compensation where a respondent failed without reasonable excuse to comply with a recommendation. (see para [39])

Wisbey v Commissioner of the City of London Police & Anr

[2021] EWCA Civ 650 · 6 May 2021Interprets

The court treated the subsection as triggering the remedial powers once the tribunal finds a contravention of a provision referred to in section 120(1). (see paras [23]; [38]) The court interpreted subsection (2) as providing three available remedies: a declaration, compensation and an appropriate recommendation. They are not mutually exclusive and none has statutory priority. (see para [38]) The declaration power was treated as one of the three remedies available after a finding of unlawful discrimination, without statutory priority over compensation or recommendation. (see para [38]) The compensation power remains available in an unintentional indirect discrimination case after the tribunal has considered the declaration and recommendation remedies. (see paras [39]; [40]) The recommendation power is part of the available remedial framework and must be considered before compensation in the cases specified by section 124(5). (see paras [39]; [40]) The court identified an appropriate recommendation as specified steps directed to obviating or reducing the adverse effect on the complainant. The narrowed power formed part of the remedial context. (see paras [23]; [24]; [38]) The provision identifies the cases in which the special remedial sequence applies: indirect discrimination established under section 19 without intention to discriminate against the complainant. It does not itself bar compensation. (see paras [23]; [39]; [40]) The court held that the subsection imposes only a procedural sequence: the tribunal must first consider a declaration or recommendation before making a compensation order. Compensation remains available where loss or damage was sustained and should be adequate and proportionate. (see paras [39]; [40]; [43])

Moorthy v The Commissioners for HMRC

[2018] EWCA Civ 847 · 20 April 2018Interprets

Section 124(2)(b) was identified as the provision under which an employment tribunal may award compensation after finding a relevant contravention. (see para [84]) Section 124(6) requires tribunal compensation for a particular loss to correspond with the amount that could be awarded by the County Court. Taxable awards may therefore be grossed up so that the claimant receives equivalent compensation. (see paras [84]-[86])

24 more judgments, and what each says about section 124, are in the case-law panel in the full Act.

Explanatory note

402.This section sets out the remedies available to employment tribunals hearing cases under the Act. It does not however apply to a breach of an equality clause or an equality rule, which is dealt with in sections 132, 133 and 134.

403.An employment tribunal can make a declaration regarding the rights of the complainant and/or the respondent; order compensation to be paid, including damages for injury to feelings; and make an appropriate recommendation. The measure of compensation is that which applies in tort claims, for example claims of negligence, where the compensation puts the claimant in the same position, as far as possible, as he or she would have been in if the unlawful act had not taken place.

404.Where a tribunal makes a recommendation it does not have to be aimed only at reducing the negative impact on the individual claimant(s) of the respondent’s actions which gave rise to the successful claim, but can be aimed at reducing that impact on the wider workforce. The recommendation must state that the respondent should take specific action within a specified period of time. A tribunal has the power in any case where a recommendation made for the benefit of the individual claimant only is not complied with, to award compensation or increase any award already made.

405.In a case of indirect discrimination where the respondent proves that there was no intention to treat the claimant unfavourably, a tribunal cannot award damages to a claimant unless it has first considered making either a declaration or recommendation.

406.This section is designed generally to replicate the effect of provisions in previous legislation, under which employment tribunals could make a declaration, order compensation to be paid and make recommendations. However, under that legislation the recommendations that they could make could only be for the benefit of the individual claimant(s). The Act extends the recommendations power so that employment tribunals can make recommendations which benefit persons other than the claimant.

All the explanatory notes for the Act

Amendments and notes

6 notes from legislation.gov.uk

Amendments

  1. F136Words in s. 124(3) inserted (1.10.2015) by Deregulation Act 2015 (c. 20), ss. 2(1)(a), 115(7); S.I. 2015/994, art. 11(a) (with Sch. Pt. 1)
  2. F137S. 124(3)(a)(b) omitted (1.10.2015) by virtue of Deregulation Act 2015 (c. 20), ss. 2(1)(b), 115(7); S.I. 2015/994, art. 11(a) (with Sch. Pt. 1)
  3. F138Words in s. 124(4)(a) inserted (1.1.2024) by The Equality Act 2010 (Amendment) Regulations 2023 (S.I. 2023/1425), regs. 1(2), 3(6)
  4. F139Words in s. 124(6) substituted (22.4.2014) by Crime and Courts Act 2013 (c. 22), s. 61(3), Sch. 9 para. 52; S.I. 2014/954, art. 2(c) (with art. 3) (with transitional provisions and savings in S.I. 2014/956, arts. 3-11)
  5. F140Words in s. 124(7) omitted (1.10.2015) by virtue of Deregulation Act 2015 (c. 20), ss. 2(2)(a), 115(7); S.I. 2015/994, art. 11(a) (with Sch. Pt. 1)

Commencement

  1. I44S. 124 wholly in force; s. 124 not in force at Royal Assent see s. 216; s. 124 in force at 1.10.2010 by S.I. 2010/2317, art. 2(1)(9)(f) (with art. 15, and subject to transitional provision in art. 7)