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Why a Fixed Fee Regime Discriminates Against Women

The government is currently proposing to introduce a fixed fee regime for clinical negligence claims, which will affect all claims that are for compensation of £100,000 or less.

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This proposal raises a number of concerns as it will dramatically affect a large number of cases. Claimants who are unlikely to receive more than £100,000 will probably have greater difficulties in finding a lawyer who is willing to represent them. If they do find a lawyer, that lawyer’s ability to investigate their case will then be hindered by the requirement to spend no more than a set number of hours on the case, regardless of the complexity of the issues or the level of the support that particular client needs.

How the level of compensation is actually calculated

Further concerns are raised when you examine how the level of compensation is actually calculated. One part of the compensation will be for pain and suffering, with greater amounts being awarded to those who have suffered more serious and long-term injuries. You can also claim for any care or treatment you need as a result of your injuries. An additional element is loss of earnings. In some cases the claim for loss of earnings can be considerable and will be the main reason why the claim amounts to over £100,000.

What this means is that two claimants could have the same injuries, receive the same care and treatment, but get vastly different damages just because they have different careers. Furthermore if the fixed fee regime is introduced, not only will the two claimants have a different result, but they will go through an entirely different process.

Earning capacity to factor in finding lawyer

The claimant with less earning capacity will have a lawyer who has to obey different rules and can only spend a limited time on his case. The client with the greater earning capacity will be more likely to find a lawyer willing to take on his case, and that lawyer will then be able to truly dedicate himself to providing an excellent service to his client.

Not only does this discriminate against claimants based on their earning capacity, but it will also have a disproportionate impact on women. This is because there are more women in low-paid jobs or part-time work than there are men. In 2010, ONS showed that of the 3.5 million employees who were paid less than £7 an hour, two thirds were women. In 2013, the Equality and Human Rights Commission published their research into the different earnings of men and women. This showed that while most male employees (86 - 87%) are in full-time employment, only 56 - 57% of female employees were in full-time employment. This is not a recent phenomenon and the Labour Market Statistics over the past ten years shows that women are more likely to be in part-time work than men.

This means female claimants are much more likely to be caught within the fixed fee regime, and unable to push up their claim for compensation past the all important boundary of £100,000.