If you have
been treated less favourably on the grounds of sex or marriage either
at work or when applying for a job, you have the right to take a claim
to a Tribunal.
Although most claims are against employers you can also claim against
a job centre or an employment agency or your trade union if you believe
they have discriminated against you.
You can take claims against more than one organisation or individual
if more than one organisation has discriminated against you (e.g. an
employer and an employment agency).
You can bring
claims against individual employees who you believe have discriminated
against you as well as your employer. It is important to name individual
employees as Respondents as well as your employer if there is any possibility
that your employer might be able to persuade the Tribunal that it took
reasonable steps to prevent the discrimination you are complaining about.
An employer has a defence to a clam if it can show it took reasonable
steps to prevent the discrimination. An individual employee who has
discriminated against you would still be held responsible. Employers
often argue that they have a 'reasonable steps' defence in cases of
sexual harassment so you should also name the individual harasser as
a Respondent.
Informal Complaint
Your complaint or grievances should initialy be raised with the your
immediate line manager. When raising a matter with your line manager,
keep a note of the complaints you raised and when, and the response
of your manager.
Formal Complaint
If this informal approach does not work, you can make a formal written
complaint using your employers grievance procedure. All employers
are required to specify in your contract of employment the person
to whom you can apply to have a grievance put right. (Employment Rights
Act 1996 Section 3(1) (b) (ii)).
When raising a written grievance, you need to know whether the SGP
applies to your case. If it does, then you and your employer need
to follow all the rules it sets out. The SGP lays down minimum standards
that a grievance procedure has to meet. If it applies to your case
but you don't comply with it, you could lose your right to claim to
a Tribunal or have your compensation reduced by up to 50%.
DDP
If your
complaint is that your employer has dismissed you (including if you
have been made redundant), the DDP will apply, . You will not have
to raise a grievance under the SGP before making a claim to the Tribunal,
but if you decide to take a claim to a Tribunal without having appealed
against your dismissal under the DDP then any compensation you are
awarded may be reduced by up to 50%.
SGP
The SGP will apply in most discrimination cases other than where you've
been dismissed by your employer. In most cases you will need to follow
the 'standard grievance procedure'. However,
there is a shorter procedure, called the 'modified grievance procedure'
that can be used in certain cases.
If you are complaining about constructive dismissal, the SGP will
apply and, unless one of the other exceptions applies, you will need
to raise a formal grievance before making a claim to the Tribunal.
If your complaint is that you have been discriminated against in any
other way or harassed by a Colleague then the SGP will apply and you
should raise a grievance about what happened.
There are some circumstances in which the SGP does not apply. The
most important in discrimination cases are likely to be where you
are complaining about harassment, and reasonably believe that if you
raise a grievance you will be subjected to further harassment. The
harassment does not have to be harassment on grounds of sex, Or where
it is not reasonably practicable for you to raise the grievance or
(if you've already raised one) to complete the grievance procedure
within a reasonable period
The SGP and DDP do not
apply to people who are not legally classed as employees.
DTI website. That website also includes sample letters you can use
to raise a grievance under the SGP.
Standard Grievance Procedure
The stages you will usually need to go through in the standard grievance
procedure are as follows:
Stage 1
Write to your employer setting out your grievance. Your letter should:
-
be
written in a reasonable tone and should not include any accusatory
comments
-
remind
your employer about what you have given to the company in terms
of length of service, flexibility and achievements to date, what
your expectations are for the future
-
clearly
explaine what has happened
-
set
out the facts that are relevant to your grievance
-
be
as specific as possible about any incidents that have occurred
-
explain
the concerns you have and why
-
refer
to any rights you believe you have
-
suggest
what you are seeking as an outcome
-
ask
for a meeting to discuss your grievance.
Stage 2
- Meeting
Your employer should arrange a meeting to discuss your grievance.
You must attend this meeting if you possibly can. You should
see about having someone as a witness present (e.g. your union
official, a trusted colleague, a family member). You have a
statutory right to be accompanied by a fellow worker or a trade
union official to a formal meeting to discuss a disciplinary
matter or grievance.
You should be clear about what has happened and what you want
as an outcome. You should not be pressed into agreeing anything
on the spot, and may need time to consider what is being proposed.
Keep a detailed and accurate record of the meeting (e.g. when
and where held, who attended, its stated purpose, the matters
discussed, the way it was conducted and the outcomes.) Keep
copies of everything you write and the replies.
After the meeting (not necessarily straight away) the employer
should tell you what he or she has decided. Your employer should
also tell you about your right to appeal.
Stage 3 -
Appeal
If you are not satisfied with the way your grievance has been
dealt with, you should tell your employer that you wish to appeal.
Do not delay – if you want to appeal you should let your
employer know as soon as you can.
Your employer may set a time limit for appealing – you
should try to let your employer know you wish to appeal within
any timescale that is set; however, if you are not able to appeal
in time you should not let that put you off. Even if you are
outside the time fixed by your employer for an appeal, you should
still tell your employer (as soon as you can) that you want
to appeal.
Your employer should arrange another meeting with you. As with
the first meeting, you should think about having someone present
as a witness and you should keep a detailed and accurate record
of the meeting.
After the appeal meeting, your employer must tell you what he
or she has decided. At this point the standard grievance procedure
comes to an end, although your employer's own grievance procedure
may give you further rights of appeal.
If you do not appeal, but go straight to a Tribunal with your
complaint, any money you are awarded may be reduced by up to
50%
Modified Grievance
Procedure
If you have left your job but you still have an outstanding grievance,
you may be able to use this, shorter, procedure. You can only use
this procedure if both you and your employer agree in writing to use
the modified procedure; and Either:
-
your
employer did not know about your grievance before you left; or
-
you
did not write to your employer setting out your grievance before
you left; or
-
the
standard grievance procedure had not been completed before you left
Stage 1
Write to your employer setting out your grievance. Your letter
should:
-
be
written in a reasonable tone and should not include any accusatory
comments
-
remind
your employer about what you have given to the company in
terms of length of service, flexibility and achievements to
date, what your expectations are for the future
-
clearly
explaine what has happened
-
set
out the facts that are relevant to your grievance
-
be
as specific as possible about any incidents that have occurred
-
explain
the concerns you have and why
-
refer
to any rights you believe you have
-
suggest
what you are seeking as an outcome
-
ask
for a written reply.
Stage 2
Your employer should write back to you, answering the points you
have raised.
Companion for
the Grievance Hearing
You may have with you a union official or another of your employer's
workers. An outside lawyer is not permitted. A fellow worker who
accompanies you has a right to take a reasonable amount of paid
time off to attend the hearing and also to prepare and confer
with you before and after the hearing. Both of you have the right
not to be victimised for having (or being) a companion.
Your companion's role
is:
-
To
support you by asking questions and addressing the hearing;
-
Not
to answer questions addressed to you by your Employer;
-
To
discuss your case with you privately – for this your companion
must be given reasonable time to discuss things with you either
in the hearing room or outside.
Obtaining
Trade Union Support
A trade union member can ask for help either through your local union
representative or by contacting a full-time officer. If your union has
official recognition then your employer will expect you to go to the
union. Your union should be in a position to negotiate on your behalf.
However, if you have any difficulties with your local union representative
about your claims, contact the District or Regional Officer.
Time limits for
Tribunal claims
There are strict time limits for making a claim to the Tribunal.
The time limit applies irrespective of whether the grievance procedure
has been exhausted.
If you file your claim at the tribunal before all the steps in the
SGP or DDP have been taken, the Tribunal will reduce your compensation
by between 10% and 50% if it was your fault that the procedure wasn't
finished. If it was the employer's fault, your compensation will
be increased by between 10% and 50%. You should try your best to
make sure that the procedure is finished before you make your claim
to the tribunal, e.g. making sure you file your grievance as soon
as you can, attend meetings and file any appeal as soon as you can.
However, the priority must be to make sure that you file your claim
within the tribunal time limit. In cases to which the SGP applies,
the time limit for bringing a claim is extended by three months
in certain circumstances.
If your grievance has not been resolved and the time limit is approaching,
send in your ET1 to the Tribunal with a letter asking the Tribunal
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 SGP
or DDP is completed, it is more important to make sure that you
file your claim in time.
The Tribunal does not have to comply with your request, but will
usually do so. If you are satisfied with the outcome of your grievance
you can always withdraw your claim; if you are not satisfied, or
if things are moving too slowly, you can ask the Tribunal to list
your case for a hearing.
If the SGP applies to your claim, the Tribunal must reduce your
compensation by 10% (and may reduce it by up to 50%) if the SGP
hasn't been completed by the time you lodge your claim, and that
non-completion was your fault. If the DDP applies, the same rule
applies. You will need to satisfy the Tribunal that you took all
the steps you were supposed to take under the SGP or DDP promptly
and that any delay in finishing the procedure is not your fault.
If the delay is due to your employer, you should write to them warning
them that you will have to submit your claim to the Tribunal because
of the time limit and that you will be arguing that compensation
should be increased. The Tribunal has power to increase compensation
by between 10% and 50% if it decides that it was the employer's
fault that the SGP or DDP was not completed. You can also tell the
employer that you still hope it will be possible to resolve your
complaint satisfactorily without a Tribunal hearing.
Conciliation through
ACAS
ACAS is an independent body with a statutory duty to conciliate in
cases about employment rights - more information can be found on their
website. Bear in mind that it is the Conciliation Officer's job to
settle the complaint in terms acceptable to both parties; the Conciliation
Officer is not there to advise you on the merits of your case or to
obtain the best possible settlement for you. ACAS operates independently
of the Tribunal system but is normally sent a copy of all the ET1s
by the Tribunal.
If you haven't yet brought a claim but you would like an ACAS officer
to conciliate, you could contact ACAS and say that you have grounds
to make a formal complaint but ask that they help you and your employer
to reach agreement. Be careful not to miss your deadline for sending
in a tribunal claim while you are still discussing settlement.
When ACAS receives a copy of your ET1,
your claim is allocated to a local Conciliation Officer. This Officer
will contact both you and the Respondent and will offer to conciliate,
or attempt to negotiate a settlement, between you. If you and the
Respondent are willing to accept conciliation the Officer will help
you to try and reach a settlement without the need for a Tribunal
hearing. Conciliation is voluntary so both you and the Respondent
are free to decline or discontinue ACAS assistance at any stage. The
Officer has a duty to be impartial and independent. Whilst the ACAS
officer may be sympathetic to your circumstances, s/he cannot act
as a representative for either party.
The Officer will:
-
explain
the Tribunal procedure, the relevant law, and the way Tribunals
have approached similar cases in the past;
-
help
you to establish the facts of your complaint and to clarify your
views;
-
explain
your views to the Respondent and the Respondent's views to you;
-
put
forward the terms of settlement which you propose to the Respondent
and vice versa (see considering
-
whether
to take a claim: what can you achieve);
-
inform
the Tribunal of any settlement.
-
NOT
express their own views on the merits of your case;
-
NOT
recommend a particular settlement to you or be responsible for ensuring
that you get the best possible settlement;
-
NOT
disclose information given to them in confidence by you or the
Respondent.
Employment
Tribunal
A Tribunal has a panel of three members. The Chairman is a lawyer. One
member is from an employer panel, the other from an employee panel.
Tribunals are open to the public
When you make 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.
A Tribunal can:
-
make
a decision on whether or not the law has been broken
-
award
compensation for your financial loss because of the treatment. It
is worth trying to estimate or calculate the amount of compensation
that you may be entitled to at the outset of your claim.
-
award
compensation for injury to feelings suffered as a result of the
treatment
-
award
compensation for injury to health suffered as a result of the treatment
-
award
aggravated damages if the injury to feelings has been made worse
by the manner in which or the motive for which discrimination has
been carried out
-
in
certain circumstances order exemplary damages to punish the respondent
-
award
interest on compensation
-
make
recommendations to lessen the effect of the discrimination on you.
A recommendation is most likely to be made if you are still at work.
Depending on the nature of your claim there could be:
an offer of shortlisting next time a vacancy occurs; removal/transfer/discipline
of someone who has sexually harassed you; your job or previous duties
back; a reference;
-
an
apology posted in the workplace for staff to see.
-
A
settlement could include terms that could not be or are unlikely
to be ordered by a Tribunal.
-
the
Respondent to improve their workplace practices so that no-one
else working there will be discriminated against in the same way,
eg by introducing an equal opportunities policy and training staff;
-
make
each side keep the details of the case and the settlement
agreement confidential.
-
an
apology from the inidivudal who discriminated against you or harassed
you.
Consider
before making a claim
Costs:if
you take the claim yourself and do not employ a lawyer, the claim will
cost you very little. Most of your expenses (travel, loss of earnings
etc) can be reclaimed from the Tribunal. In some cases the Respondent
can be ordered to pay you for your time preparing the case. Even if
you lose, you are unlikely to be asked to pay the costs of the Respondent
unless you acted unreasonably.
Time
pressures: taking a claim will inevitably make demands on your
time and emotional energy. Employers do not have to give you paid time
off work to attend Employment Tribunal hearings and the preparatory
steps are time consuming. Litigation is invariably stressful and some
claimants find that taking a claim can dominate their lives.
Publicity:
Employment Tribunal hearings are held in public. The press occasionally
attend hearings and can report proceedings. However, if your claim involves
allegations of sexual misconduct, the Tribunal has the power to make
a Restricted Reporting Order, which prevents the media from identifying
you or the persons against whom you are alleging misconduct until the
decision is sent out. The Tribunal will not identify you in the decision
if you have claimed that a sexual offence was committed against you.
A settlement could include agreements by either side to keep certain
matters confidential.
How
Do I Start
Send an SD74 questionnaire.
The information you receive in reply may help you to decide whether
you have a good claim. You can dowload the SD74
Questionnaire from this site for completion on-line. Keep
a copy of the form or your letter for your own records.
Send your
completed application form or letter to the appropriate employment tribunal
office. The appropriate office depends on the place where you worked.
If you are unsure which office is correct, call the Employment Tribunal
Enquiry Line on tel: 0845 795 9775 Textphone: 0845 757 3722 http://www.employmenttribunals.gov.uk
Case
management discussions
-
clarify
the issues in the case;
-
decide
what orders should be made about matters such as documents and witnesses;
and
-
decide
the time and length of the full hearing.
-
They
will normally be held in private, before a chairman sitting alone,
or over the phone.
Pre-hearing
review :
-
decide
whether the claim or response should be struck out;
-
decide
questions of entitlement to bring or defend a claim;
-
decide,
if either side's case appears weak, whether a deposit needs to be
paid, and if so, how much, before that side can go ahead.
-
The
letter giving you the date of the hearing will state the matters
to be decided at the pre-hearing review.
-
Unless
the pre-hearing review is only to consider whether a deposit should
be paid, it may well be necessary for evidence to be given at such
a hearing. You will need to decide which witnesses (if any) and
evidence to bring, bearing in mind the specific matters which the
tribunal will be considering at this stage.
-
Pre-hearing
reviews are normally held in public before a chairman sitting alone,
but may be held over the phone.
The
final hearing
This is the hearing that:
-
decides
whether the claim succeeds or fails and, if it succeeds,
-
what
remedy is appropriate.
-
The
hearing will normally be conducted by a full tribunal which includes
a chairman and two lay members.
-
What
will happen at the hearing? gives full details on the procedure
at the hearing.
When you
arrive at the tribunal you should report to reception. Before the hearing
a tribunal clerk will discuss with you the number of witnesses you have
and collect any documents you may have brought for the tribunal. The
letter we send you will tell you how many copies to bring.
Generally
in an unfair dismissal case the respondent will give evidence and call
any witnesses first, while in a discrimination case the claimant will
normally be first to give evidence followed by any witnesses. However,
there is no absolute rule as to which side starts and this will be discussed
with you before the hearing begins.
You and your
witnesses will have to give evidence on oath or affirmation. If you
lie after swearing an oath or affirmation you could be convicted of
perjury. You may give evidence by reading a prepared written statement
if you want. You or your witnesses can then be asked questions by the
other side (this is called 'cross-examination'). You or your witnesses
can then give further evidence to clarify matters which came up when
being asked questions by the other side 're-examination'). Finally,
the Chairman and members may ask some questions.
The same
procedure is then usually followed for the other witnesses and then
with the claimant. Once all the evidence has been heard, both sides
can sum up before the tribunal retires to consider their judgment. Unless
the tribunal 'reserves' its judgment, the chairman will announce the
judgment at the end of the hearing. If the judgment is reserved you
will receive it in writing at a later date. This may happen in complicated
cases or if there is not enough time on the day of the hearing to come
to and announce the judgment.
If the claim
succeeds the tribunal will normally expect to deal with compensation
issues at the hearing. The time set aside for the hearing will usually
include time for this.
Witness
You can bring witnesses to the hearing to give relevant evidence.
Even if you have not been told to, it is helpful if you let the tribunal
know beforehand how many witnesses you plan to bring. You may have been
ordered by the tribunal to produce a written statement of your own evidence
and for your witnesses. But even if you have not you may wish to consider
doing so. However, in Scotland you should not do so unless ordered by
the tribunal.
If you believe
that a witness may have something of value to contribute to the evidence
they should attend the hearing, rather than relying just on the contents
of signed statements. This is especially important if you believe that
the other side would challenge what the witness has to say. It is your
responsibility to make sure that your witnesses come to the hearing.
You may ask
the tribunal to issue a witness order which will summon someone that
you want to have at the hearing, even if they do not want to be there.
You must apply in writing well before the hearing.
If you do
so you will need to tell the tribunal:
-
the
name and address of the witness;
-
what
the witness will say and how it will help your case; and
-
why
the witness is not willing to come to the hearing voluntarily.
Settlement
Around 75% of claims settle either before the tribunal or at the tribunal.
It is worth giving a settlement proper consideration because the risks
of litigation mean that:
-
however
strong a claim appears, there is always a risk that it will not
succeed. Discrimination claims are particularly difficult to prove
because an employer is highly unlikely to accept that his treatment
of you was due to a sex-related factor
-
even
where a respondent does not appear to have a reasonable explanation
for his treatment of you prior to the tribunal, one may emerge when
he gives evidence. Alternatively your witnesses may fail to give
the evidence you expect on the day
-
although
you may feel a reluctance to settle because it feels like an anti-climax
after getting so far or you feel that it allows the employer off
the hook, a reasonable settlement does represent a successful outcome.
In almost every case the alternative is to risk leaving the tribunal
with nothin
Settlement
Considerations
Since tribunals can award compensation for injury to health arising
from an act of discrimination, the settlement of your claim should include
compensation for any illness (including stress related symptom/anxiety)
you have suffered or are suffering as a result of the acts which you
claim to be discrimination. You will not be allowed to bring another
claim about illness which you were aware of when you settled the case
and which arose from the same acts you complained of in the settled
claim. (This would apply to another claim of discrimination in the employment
tribunal or to a personal injury claim in the county court). You must,
therefore, ensure that you take into account any injury to health you
have suffered or are suffering in deciding how much you are prepared
to settle your claim for.
You may also ask for terms to be included which could not or would be
unlikely to be ordered by a tribunal, such as that your employer provides
you with an agreed written reference when requested to do so in the
process of any future job application which you make.
"Without prejudice" negotiations
You and the respondent may want to discuss the possibility of settlement
without the tribunal knowing about your discussions should you be unable
to reach agreement and the case go to a hearing. If you are talking
or writing about possible settlement and state that the conversation
or letter is "without prejudice", then neither party will
be able to refer to the conversation or correspondence in the tribunal.
"Without prejudice" correspondence should not be included
in the bundle of documents that the tribunal see. You should write "without
prejudice" at the top of any letter discussing settlement.
If you want to be able to refer the tribunal to the correspondence should
you succeed with your claim and want to apply for costs on the grounds
that the respondent has unreasonably refused to settle the claim, you
could put "without prejudice save as to costs" on your letters.
If you are writing to the respondent both about a possible settlement
and also about separate matters, it is best to write two separate letters.
Write about settlement in a "without prejudice" letter and
the other matters in a separate letter. You will then be able to refer
the tribunal to the letter which is not labelled "without prejudice",
if you need to. You can still send the two letters in the same envelope.
Labelling a letter which is not about possible settlement "without
prejudice" has no effect but it is best not to use "without
prejudice" unless you are talking about settlement.
Methods
of settlement
There are a number of different methods of settling a tribunal claim.
The respondent is likely to insist on a formal settlement. Only a settlement
by one of the methods below is effective to stop you continuing with
your claim to the tribunal. If you (or your representative) sign an
agreement in one of these ways you will be bound by this and will not
be able to resurrect the claims you have settled (except in the most
exceptional of circumstances). Although a settlement which is not concluded
in one of the ways below will not stop you continuing with a claim to
the employment tribunal, the tribunal would take into account any compensation
you had already received when awarding compensation. The agreement might
also be a valid settlement of any contractual claims.
If you reach an agreement but the respondent does not comply with this,
e.g. by failing to pay the agreed compensation, you will be able to
take action in the county court to enforce the agreement. The employment
tribunal cannot force the respondent to comply with the terms of an
agreement or to comply with an order for compensation made by the tribunal.
You should make sure that the wording of the settlement agreement does
not cover any possible future claims, which you are not prepared to
give up for the compensation, which you are being offered. Often the
employer will want you to settle all claims arising out of your employment
but it is safest not to agree to anything which, on the face of it,
would include any type of claim you might need to bring in the future,
even if you are not currently aware of it.
Agreement
conciliated by ACAS
An agreement reached with the assistance of ACAS is binding as soon
as the terms are agreed. The agreement is invariably recorded in writing
on form COT3, which is signed by all the parties, but the verbal agreement
is binding even if a party subsequently changes their mind and refuses
to sign the form.
An agreement conciliated by ACAS can include settlement of potential
claims which were not included in your claim to the employment tribunal,
provided that the agreement specifically identifies the jurisdictions
under which such claims would be brought e.g. under the Employment Rights
Act, the Sex Discrimination Act, the Race Relations Act, the Disability
Discrimination Act.
Compromise agreements
These are agreements which satisfy specific statutory conditions including
that:
the agreement is in writing
the agreement
must relate to the particular complaint i.e. specific complaints which
have been identified, either in a claim to the tribunal or in another
way by the employee e.g. in correspondence. It cannot include a "catch-all"
term covering potential complaints which have not yet been identified
the individual
must have received advice from a relevant independent adviser, which
is currently defined as someone in one of the following categories:
a
qualified lawyer
officers, officials, employees or members of an independent trade union
who have been certified by the union as competent to give advice and
as authorised to do so on its behalf, provided that the union is not
the respondent or connected with the respondent
persons working at an advice centre who have been certified as competent
to give advice and as authorised to do so on its behalf provided that
the centre is not the respondent or connected with the respondent and
that the claimant has not made any payment for the advice
a Fellow of the Institute of Legal Executives employed by a solicitor's
practice and supervised by a practising solicitor
the adviser
must have a current contract of insurance, or professional indemnity
insurance, covering the risk of a claim by the complainant in respect
of loss arising in consequence of the advice;
the agreement
must identify the adviser and must state that the statutory conditions
regulating compromise agreements have been satisfied.
Order
in agreed terms from the employment tribunal
You can write to the tribunal asking that it make an order dismissing
the claim on agreed terms. These terms should be set out in writing
and signed by all parties. The tribunal will then issue a decision which
sets out these agreed terms in full, refers to the terms in an attached
document or states that the claim has been withdrawn on terms being
agreed.
Withdrawal
of claim
You can agree to withdraw your claim as part of agreed settlement terms.
You would write to the tribunal saying that you wish to withdraw your
claim since settlement terms have been agreed. The tribunal will then
issue a decision saying that the claim has been withdrawn on terms being
agreed.
