Taking a discrimination case This page explains what to do if you want to pursue
a claim for discrimination.
In Employment Approaching your employer If you are being discriminated against under any of the protected
grounds, you have the right to take a claim to the employment tribunal.
For most people, this is a last resort and you should first of all try
to resolve things internally with your employer. If you do go on to take
a claim, it will be in your interests to show you did everything
possible to resolve the problem in the workplace. If you feel you are
being discriminated against it is a good idea to keep a diary of events
with dates and times of incidents and details of what happened. You
could try raising the issue with your immediate line manager or if this
is the person who is causing the problems, you could try the manager
above them or your Human Resources department if you have one. If you
have a union or staff association you should contact them for help.
Raising a grievance If you are unable to resolve the problem informally and you decide to
take things further, you should write a letter of grievance to your
employer.
Once you have sent the written grievance you should, wherever possible,
comply with the rest of your employer’s grievance procedure before
submitting your claim. Your employer should set up a meeting to discuss
your grievance. You have the right to take a trade union representative
or trusted colleague with you. If your grievance is not upheld, you have
the right to appeal the decision and should exercise this right. You
should send your grievance as soon as possible and bear in mind the
overall time limits for taking a claim to the employment tribunal
discussed below.
Before 6 April 2009, it was compulsory in most cases to use the
statutory grievance procedure to try to resolve a workplace problem
before making a claim at an employment tribunal. But on this date, new
procedures for dealing with discipline, dismissal and grievance issues
were introduced. The new system is more flexible, with increased
emphasis on alternative dispute resolution mechanisms.
The Advisory Conciliation and Arbitration Service's (ACAS)
code of practice (external link) outlines the principles of
what employer and employee should do to when trying to resolve workplace
problems. Employers and employees are no longer required to follow
mandatory steps in the grievance process, but employment tribunals do
now have discretionary powers to adjust awards by up to 25% if employers
or employees have failed to comply with the recommendations in the code.
The Questionnaire Procedure If you are thinking of taking a claim, you could use a special
questionnaire form to gather more information about your complaint and
ask your employer questions about the reasons for the treatment you
received. The questionnaire can help you to decide whether to pursue
your claim. It must be sent to the employer within 3 months after the
date of the alleged discriminatory act or within 21 days after the date
on which your complaint was received by the employment tribunal.
Taking your discrimination claim to the employment tribunal If you wish to make a complaint and you live in England or Wales, you
must send your complaint on the official Employment Tribunal Application
Form (ET1) to the employment tribunal nearest to your place of work. You
can obtain an ET1 form from the Employment Tribunals Service.
Alternatively, you can fill in and submit your application online on the
Employment Tribunals website
(external link). Our caseworker will complete this for
you, if you access our casework service.
Time limits for your complaint If you decide to take a claim, you must make your complaint to
the employment tribunal within 3 months (less one working day)
from the date of the discriminatory act. Complaints cannot be lodged on
a Saturday, Sunday or public holiday, so you will need to count back to
the nearest working day if your time limit expires on one of these days.
Do not delay in sending your claim even if you are off work through
illness or you are waiting to see if your union or other body will
represent you. If your grievance has not been resolved and the time
limit is approaching, submit your ET1 to the employment tribunal. You
could also send the tribunal a separate letter asking it not to list
your case for hearing until you know the outcome of your grievance.
Although the tribunal must in certain circumstances reduce your
compensation if you file your complaint before the procedure is
completed, it is more important to make sure that you file your claim in
time.
What if I am outside the time limit for making my claim with the
employment tribunal? The tribunal may be prepared to extend the time limits if it is
just and equitable to do so. They may extend the time limit if, for
example, you were too ill to send a claim or were waiting for your
employers to take some action. It is still worth making the claim and
explaining fully in box 7 of the ET1 form (which asks for additional
information) why you have delayed, but you should never count on this.
What if the discrimination has been continuing over a period of
time? Sometimes ongoing discrimination is treated as a continuing course of
conduct. In that case it will not matter if some of the incidents
happened more than 3 months ago. But it is safest to put your claim in
within 3 months of the first incident to make sure all the incidents
fall within the time limit. Every incident is important in showing a
pattern of behaviour so include all of them on the ET1.
What happens at the tribunal hearing? An employment tribunal is less formal than a magistrate's court or
county court in England and Wales, or a sheriff's court in Scotland, but
like a court it has procedures and rules. There is a panel of three
members. The person in charge, the chair, is the lawyer. One of the
other two members is a representative of an employees' organisation, the
other of an employers' organisation. Tribunals are open to the public so
you can find out what happens by going to a hearing, but as most
tribunal claims are about unfair dismissal, you may not see a
discrimination case. You can contact the tribunal office to find out the
dates on which discrimination cases are to be heard, but whatever a case
involves, it is useful to get an early look at what a tribunal is like.
When you take a discrimination claim it is up to you to convince the
tribunal that you have been discriminated against. The person you say
discriminated against you will defend the claim and try to persuade the
tribunal that you have not been discriminated against. Throughout the
process you are known as the 'claimant' and your opponent as the
'respondent'. Together you are known as the 'parties' to a claim.
What will I get out of taking a claim? The purpose of going to a tribunal is to get a decision on whether your
employer has broken the law. If the tribunal decides in your favour it
can: ●declare that your employer has
discriminated against you unlawfully ●order your employer to compensate you for
your losses, and/or ●recommend that the employer take steps to
reduce the effect of the discrimination on you.
You will find the process much easier if you decide what it is you hope
to get out of taking a claim. Do you want an apology? A good reference?
Justice? Financial compensation? Do you want to prevent the respondent
from discriminating against other people?
Being clear what you want will help you to decide whether or not to
accept any offer of settlement, rather than going to the tribunal.
Compensation The tribunal can order compensation for all or some of the following: ●loss of wages to date ●loss of future wages ●injury to feelings
A tribunal can only award you compensation; it can make recommendations
but it cannot order your reinstatement (unless you also take a
successful unfair dismissal claim where reinstatement is sometimes
available), nor can it order the employer to give you an agreed
reference.
Settlements You need to be clear about what you want to happen before you can decide
whether to accept a settlement or to proceed to a tribunal hearing. It
is important to secure your rights it may not be necessary to take your
case all the way to a hearing at the tribunal. If a settlement makes an
employer rethink attitudes and change practices you may feel you have
made your point and be willing to settle without a tribunal hearing.
●Here are some of the possibilities that you
should consider: ●receiving financial compensation ●receiving an apology ●being given an agreed reference ●having your situation at work improved ●getting your job back ●What will it cost me to take a claim?
It is free of charge to lodge a claim with the employment tribunal. Most
of your expenses (such as travel and loss of earnings) can be reclaimed
from the tribunal.
Each party usually bears their own expenses in preparing for a hearing
and the cost of any legal representative they employ so even if you lose
you are unlikely to be asked to pay the costs of the respondent. The
tribunal does however have the power to award costs against you if you
act 'vexatiously, abusively, disruptively or otherwise unreasonably'.
The tribunal may also award costs against you where it believes that the
bringing of the claim has been misconceived (i.e. that your claim had no
reasonable prospect of success). You may be asked to pay a deposit at
any stage in the proceedings if the tribunal decides that your claim has
no reasonable prospect of success.
It is also possible for the tribunal to order the respondent to pay
costs to you if they act vexatiously, abusively, disruptively or
otherwise unreasonably in defending the claim.
For claimants with a genuine and legally arguable claim who conduct
their case reasonably there is little risk of having to pay any costs.
For further information and examples of where either party may be asked
to pay costs see using your rights.
Can I avoid embarrassing publicity? Tribunal hearings are usually open to the public including the press. A
tribunal can, in certain limited circumstances make a restricted
reporting order. This means that the media cannot publish your name or
that of the respondents during the tribunal hearing. This order normally
ends when the tribunal reaches its decision and details and all names
are no longer confidential.
Note that most of the landmark cases involving transsexual people and
employment have involved anonymity being successfully requested and
granted. You can tell where this is the case because the claimant’s name
in the case title is replaced by a letter (which need not have any
connection with their actual name).
In Housing, Goods, Facilities and Services, Education and Public
Functions
If your claim is not an employment case then it will be heard by the
County Court. The time limits for claims is generally within 6 months
for discrimination cases to be submitted to the court. A claim should be
made on an N1 form
N1 Form (PDF). There is a court fee for submitting a claim,
which is currently £150 unless you qualify for exemption.
As in the employment cases, a questionnaire can be served to the
discriminator before the claim is submitted (see above).
After the claim is submitted to the court, and a defence is entered the
court will issue an allocation questionnaire to fill in. This is so that
the court can make a decision about how complicated the claim is and the
appropriate track where it should be heard. If it is a straight forward
case and the value is under £5000 it is generally heard through the
small claims track, which is a much less formal type of hearing with the
judge in chambers. If you approach the REC for help, we can represent in
these types of cases.
More complicated cases or cases claiming £5000- £25,000 will be
allocated to the fast track, which is a more formalized hearing with
more complicated directions about the management of the case.
Cases heading for county court can be settled in the same way as
employment cases, and the judge will often allocate an extra month to
allow the parties to negotiate and try and find a mutual agreement to
avoid court.
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