Section 114(7) of the Equality Act 2010 creates a presumption in favour of appointing one or more assessors in discrimination cases unless the court finds ‘good reason’ not to do so.
What is an assessor?
An assessor is a lay person with particular experience in life appointed by the court to assist in discrimination cases. His/her role is to:-
- Provide guidance to the court in identifying issues, such as unconscious bias and stereotyping, which are often central to the claim; and
- Help evaluate the evidence.
He/she typically:-
- Specialises in equality issues, although he/she is not required to have specific expertise in the particular protected characteristic at issue in the case (Cary v Commissioner of Police for the Metropolis [2014] EWCA Civ 987);
- Prepares a report for the court on any matter at issue;
- Attends the whole or any part of the trial to advise the court on any such matter; and
- Is remunerated with a sum determined by the court and that will form part of costs of the proceedings.
Qualification of the assessor
It may sound vague for the assessor to be required to specialise in equality issues or have particular experience in life. It determining whether the assessor has skill and experiences in the matter, the court will first identify the matter and then to decide whether the assessor has the necessary skill and experience in relation to it.
For example, if the matter is about whether the necessary adjustments were or should have been made for a disabled person, a potential assessor whose special field of experience is in mental illness may not qualify him/her to be the right assessor for the matter. It is less straightforward if the matter is about, for example, whether the way in which the defendant treated a homosexual person differently compared to a heterosexual person. The defendant would often argue that they would have acted in exactly the same way if the protected characteristic (i.e. sexual orientation in this example) had been absent. The assessor can assist the court in deciding whether the defendant is trying to deceive the court. His/her experience in masks, pretences and protests (that the defendants often put forward and of the way in which unconscious bias or stereotyping can operate) is going to be relevant.
When to appoint the assessor?
The parties should bring the court’s attention to the following issues at an early stage of the proceedings so the court can decide:-
- Whether there is any reason not to have one or more assessors;
- What the matter that the assistance of the assessor(s) should be sought;
- What sort of assessor(s) that should be; and
- The identity or identities of the of the assessor(s).
The party who proposes an assessor should provide details of the proposed assessor’s availability and qualification, which are mostly likely to be in the form of a CV, to the court and the other parties.
How can we help?
Ronny Tang is an Associate in our expert Dispute Resolution team, specialising in defamation claims, contentious probate
and inheritance claims, Trusts of Land and Appointment of Trustees Act 1996 claims, Equality Act 2010 claims and Protection From Harassment 1997 claims.
If you have any questions concerning the above related subject, please contact Kate, Ronny or another member of the team in Derby, Leicester, or Nottingham on 0800 024 1976 or via our online enquiry form.
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