Employment Discrimination

Boss talking to pregnant businesswoman

Please note, fees for Employment Tribunals have been abolished in light of the recent Supreme Court ruling and anyone who has previously paid fees should seek to recover them.

All employment discrimination cases and general employment cases will be heard by an Employment Tribunal.

Generally all employment discrimination cases must be submitted within 3 months – that is 3 months of the date of the discrimination and also in terms of unfair dismissal – within 3 months of the EDT (that is the effective date of termination – the date your employment ended).

Starting the Process

Before you can lodge your case with an Employment Tribunal you must now go through what is called ‘the early conciliation  process’. This is intended to try and help you reach an early resolution to your case, without the need for a hearing. We can’t help you with this, you need to complete the notification yourself. However,we may agree to be added as representative, which will mean all negotiations will be done through ourselves. In the event we successfully negotiate a settlement for you, we would agree a smaller fee (minimum of £250 – maximum £1000).  If your case isn’t settled at that stage then ACAS will issue you with a certificate, which we will need in order to submit a claim on your behalf. The time limit ’freezes’ in these circumstances and time does not run again until you receive your certificate acknowledging that your attempt at conciliation is finished. You will always have at least a month to present your claim to the tribunal.

After this, if you are intending to go forward in your claim you may decide to ask your employer questions. Although the Equality Questionnaires procedure has been abolished, you still can ask questions to determine if you have a case – this document explains it further http://www.acas.org.uk/media/pdf/m/p/Asking-and-responding-to-questions-of-discrimination-in-the-workplace.pdf 

If we are dealing with the employment discrimination case we would either ask your employer questions through this process or serve a letter before action which outlines your case to see whether we can settle the matter at an early stage. Because of the short time limits this is not always possible.

Making the claim itself

An employment discrimination claim must be submitted on an ET1 form. You can fill in the ET1 form online here or download the PDF here.

The form outlines what you are claiming. It is important that you get it right and include every possible claim as you may not be able to add to it later.

If you are doing an employment discrimination claim yourself – here are some tips:

  • Try not to waffle. Stick to the facts, avoid the ‘he said, she said syndrome’
  • Make sure that you specify dates where possible, these are very important
  • Give background context. So if you think you were discriminated against because of your pregnancy for example, you can refer to previous incidents where things were said/done to other pregnant women
  • Include all possible claims – so if you were sacked, and you think its discriminatory – add in unfair dismissal if you have over two years service
  • Be clear who you are claiming against – a company will be liable for the acts of its employees
  • Avoid conspiracy theories – tribunals generally don’t like or accept them
  • Be specific

When you lodge  your application it is important that you either pay the fee (currently £250) or complete the fee remission form.

Wheelchair at bottom of stairsAfter the ET1 Form is lodged, you (or your representative) will receive an acknowledgement of the claim.

The other side has 28 days to complete their defence to the claim and you (or your rep) will receive a copy of it.

Case Management Discussion or Preliminary Hearing
In most cases the Tribunal will call a Case Management Discussion/Preliminary Hearing. This is a brief hearing to try and ensure the case runs smoothly. It is about practical matters not about hearing any evidence. They will look at things like whether there are outstanding requests for information, number of witnesses to be called, likely length of hearing etc.  This is often conducted by conference call.

Pre Hearing Review
If there are issues about whether some or all of the case can go ahead, the Tribunal may call a Pre Hearing Review.  At this type of hearing some evidence is considered to make a decision. Usually it is about a matter of law, for example if there was an argument that the case wasn’t submitted within the 3 months or that some evidence should not be admitted.
Both of the above hearings are usually heard by just the Employment Judge.

Employment discrimination cases can be settled at any time during the claim. They are often financial in nature, but can include other things, like a reference if that’s what you both agree. Usually this will be done through ACAS who will negotiate with the employer on your behalf. However, even if the case gets to a full hearing, sometimes the employer will ask you to discuss a settlement just before the hearing starts.

Full Hearing
When the full hearing arrives, the employment discrimination case will be heard by an Employment Judge and two lay members (one who represents an employer’s organisation and one that represents an employee’s).

When you address the Tribunal you should call them ‘Sir’ or ‘Madam’. The one sat in the middle will be the Chair and will normally do most of the talking.

Young Black manSometimes, but not often the case will start with opening submissions. These will be a summary of the points that each side will want to make on the day. Mostly, however cases will go straight into hearing evidence from witnesses. If you are the claimant you will also be classed as a ‘witness’.

In employment discrimination cases the claimant usually goes first, in unfair dismissal cases, the respondent goes first. If the case is a mix of the two, it will be for the tribunal panel to decide.

If you are first you would give evidence first. All witnesses will be asked to swear on the bible, or another religious text of their choosing or affirm that they are telling the truth, in the same way as in a criminal court. Witnesses will normally from a pre prepared witness statement that they will read out. The other side then has a chance to cross examine on that statement, by asking questions about the case to try and prove their side of the story.

Normally a bundle will have been prepared, which contains all of the documents that the case relies on. It will have page numbers and you will be referred to look at those documents as part of the cross examination.

When all the witnesses have been heard and cross examination has taken place for one side, the other side will do the same. Sometimes the Tribunal panel will ask you or witnesses some questions too to find out more information.

When all the witnesses have been heard there is a chance for ‘closing submissions’. This is just an opportunity to remind the Tribunal panel of the things you want them to remember. If you are unrepresented it is best not to try and make legal arguments. It is best to prepare something in advance for this – some brief notes that will remind you what you want to say.

After the closing submissions, the tribunal panel will tell you what happens next. They will need to make their decision. Sometimes they do this on the day, and other times they will take more time and send it to you at a later date.

If they are going to make their decision that day, the tribunal panel will leave the room to decide and tell you their decision when they come back. If they take more time, they will send the decision to you in writing later.

Back view of gay coupleAppeals
You can’t appeal a case just because you don’t agree with the decision; there are limited legal grounds for an appeal. If you need help with an appeal you should seek legal advice.

Practicalities for Claimants
Q What to wear?
A The Tribunal is a public, legal hearing so dress smartly. Switch off your mobile phones.

Q Is there somewhere special I should sit?
A Yes there will be seats immediately in front of the Tribunal Panel, with a sign that indicates which is claimants and which one for respondents. If you are represented your rep will take one seat and you will sit next to them.

Q Can I bring someone with me?
A Yes, the hearing is public so anyone can come with you. They must however keep quiet and refrain from making comments during the hearing.

Q I’m nervous, how should I act?
A Be respectful when addressing the Tribunal. Try not to become angry or aggressive, either with the Tribunal or any witnesses. If you are unrepresented and don’t understand something that is being said, ask! – the Tribunal panel are there to try and get to the truth and want you to understand exactly what’s going on. If you are represented and want to ask something, pass a note to your representative rather than trying to interrupt.

Q Will I have to see the Respondents?
A Yes, you will – they will be in the hearing with you. But there are separate waiting areas for claimants and respondents, so you won’t have to sit with them beforehand.

Q Can costs be awarded against me?
A Although it is rare in Tribunals, the Tribunal can award costs where it thinks that the claimant or his representative has acted ‘vexatiously, abusively, disruptively or otherwise unreasonably, or the bringing or conducting of the proceedings by a party has been misconceived’. A key point in this is that you should always tell the truth, most cases where costs have been awarded against claimants are where the Tribunal has concluded they have lied in the hearing.