Claims under the Equality Act 20101 arising out of clinical care are increasing in frequency and are often made wholly without merit. Such claims are novel and whilst not of high value, they can run the risk of reputational damage to the defendant healthcare provider. They tend to be by their very nature headline grabbing.
Dealing with claims that lack merit is a challenge that medical professionals might encounter. It is important to understand the legal basis for such claims and have a strategy for their management to ensure a just and fair resolution.
The legal framework
The Equality Act 2010 (‘’the Act’) legally protects people from discrimination in the workplace and in wider society including healthcare providers. It is against the law to discriminate against anyone because of:
• age
• disability
• gender reassignment
• being married or in a civil partnership
• being pregnant or on maternity leave
• race
• religion or belief
• sex
• sexual orientation
These are known as ‘’protected characteristics’’.
Types of claims
Unlawful discrimination can take various forms including:
Management of such claims
Review the claim thoroughly to understand the specifics and the basis on which it is made. Determine whether the claim falls within the scope of the Equality Act and if it pertains to a protected characteristic. In order to successfully bring a claim for damages under the Act, the person bringing the claim must prove that they have suffered unlawful discrimination as a result of a protected characteristic which caused them to suffer injury to feelings. Sometimes, claims without merit might not even meet the basic criteria for protection under the Act.
All relevant documentation and evidence related to the alleged incident should be gathered. This could include medical records, communications with the patient, witness statements and relevant policies or guidelines. This evidence will be essential in assessing the credibility of the claim.
Medical defence organisations and/or specialist lawyers can assist in assessing the situation objectively and provide guidance on the appropriate next steps to address the claim. Unlike clinical negligence claims, expert evidence is not always required in order to successfully defend claims under the Equality Act. Often, claims are successfully defended based on the contemporaneous records and factual evidence. This should be carefully considered on a case-by-case basis.
Time limits
There is no Pre-Action Protocol for discrimination claims. A defendant should respond to a Letter of Claim within a reasonable time, up to 3 months.
Of note, the limitation period is 6 months, irrespective of whether the claimant is a minor. Courts adopt a stricter approach to limitation in these types of claims so as to not burden public bodies with claims of this nature. It is important to carefully check the dates on receipt of a new claim to ensure that it is not already statute barred.
Examples of claims under the Act
Case example 1
Clyde & Co LLP represented a GP practice in a claim that concerned allegations of indirect disability discrimination by requiring all patients to wear a face covering during the Covid-19 pandemic when attending a GP appointment. The Claimant alleged that she was disabled because she suffered from claustrophobia.
No evidence was provided to support the assertion that the Claimant was disabled within meaning of the Act, so the Act was not engaged. In addition, throughout the relevant period, Covid-19 restrictions were in place at the GP practice. It was a legal requirement for face masks and coverings to be worn by staff and patients in all clinical and non-clinical areas unless they were unable to do so. This was required to prevent the transmission of Covid-19 and minimise disruption to health and care services. If a patient was unable to wear a face covering, it would then be a matter for the treating clinician to decide whether they felt comfortable proceeding with an appointment in those circumstances. If not, an appointment would be re-arranged with an alternative clinician. The care provided was reasonable and there was no unlawful discrimination. The claim was successfully repudiated.
Case example 2
Clyde & Co LLP represented a dental practice in a claim brought by the Claimant who was an NHS patient of the practice. At its heart, the Claimant’s claim was one of alleged unlawful disability discrimination, specifically a purported failure to make reasonable adjustments. It was alleged that the dental practice unlawfully discriminated against the Claimant by failing to accommodate their mobility needs by failing to ensure all of their appointments took place in the downstairs clinic and failing to accommodate their communication needs by failing to communicate by email (their preferred method of communication) and accommodating their difficulties with organisation.
Clyde & Co LLP applied to the court for summary judgment because the claim was without merit. The Judge held that the Claimant’s complaints in respect of the alleged delay or failure to respond to emails, to re-arrange appointments and failing to arrange them in a downstairs clinic were errors on behalf of the dental practice that were no more than administrative failings or one off events, and did not amount to unlawful discrimination.
In respect of the dental practice’s late cancellation policy, no action was taken by the dental practice as a result of the Claimant’s late cancellations and therefore there was no disadvantage to the Claimant in that policy. Consequently, any argument would be speculative and even if that isn’t correct, what reasonable adjustment could one put in place? The Judge could not see how the claim could succeed.
The Claimant alleged that the claim was actually concerned primarily with the policy of phone calls taking precedence over emails. The Judge held that that is not a policy but rather just inherent in the nature of the technology itself. The use of telephone is instantaneous whereas text communication is inherently delayed. Complaining that text-based communication is slower than direct verbal communication is like the argument that ‘’water is too wet’’. The Judge held that such a claim was speculative and would be difficult to prove. To require all communication be done by email is not a reasonable adjustment.
The Judge held that the claim had no prospects of success, dismissed the claim and ordered summary judgment for the dental practice.
Conclusion
Cases under the Equality Act 2010 are increasing in frequency and like the above examples, are invariably wholly defensible. Clyde & Co’s healthcare team have significant experience in supporting healthcare professionals and providers throughout these difficult cases and achieving a discontinuance/dismissal. In fact, Clyde & Co continue to have a 100% success rate in rebutting these novel claims brought under the Act arising out of clinical care.
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