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| Home | Overview | Disability | Employment | Services | Education | Benefits | Business | Advice | Links | More... |
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These pages do not apply outside the United Kingdom.
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The "Code"
means the 2004 Code of Practice: Employment and Occupation (pdf file on EHRC website). Section references |
Options to consider
Remedies, including compensation
Going to court
Victimisation
Claiming against individuals and other involved
Remember you can call the Disability Rights Commission helpline on 08457 622 633.
You may want to take up the complaint direct with the employer first, through their grievance or internal appeals procedure where appropriate. If you are already employed there, approaching a person in their personnel department may sometimes be easier than approaching your manager - there may even be an equal rights officer. From 1st October 2004 it became more important to use any internal greivance procedure - see Employment Act 2002.
You may wish to approach a relevant organisation such as a union (they often give free advice on employment issues) or get other legal advice. See my web page on Sources of Help and Advice. According to statistics, legally represented applicants have a much greater success rate than others. Legal representation may also help establish favourable precedents for people who stammer. The cost obviously has to be considered if you pay for the advice. (See below as to whether or not you might have to meet the other side's legal costs or he have to meet yours in a tribunal case.)
Or you can approach ACAS - www.acas.org.uk - to promote a settlement. ACAS can come in before or after a tribunal application has been made, and indeed has certain duties to conciliate (s18 Employment Tribunals Act 1996). For an employer to prevent you re-opening the case, any settlement has to comply with certain conditions (new Schedule 3A Part 1 (old s.9 as amended), para 13.21 of Code). The equivalent of ACAS in Northern Ireland is the Labour Relations Agency - www.lra.org.uk.
Also, in an appropriate case the new Disability Rights Commission may assist in bringing proceedings (see the DRC section).
This procedure, discussed under "Going to Court" below, can also be used without any tribunal proceedings having been instituted (subject to time limits), to ask questions of the employer.
Under DDA s.17A, a tribunal can make an order declaring the parties' rights, order compensation (see below), and/or recommend that the employer take remedial action. Failure by the employer to comply with a recommendation can result in increased compensation.
Compensation can include loss of earnings, injury to feelings, and aggravated or exemplary damages. There is no legal limit on the amount of compensation that can be awarded. However, compensation for injury to feelings will not normally be more than £25,000. A Court of Appeal case called Vento v Chief Constable of West Yorkshire Police (2002) distinguished three bands of compensation for injury to feelings, often called the 'Vento bands':
In 2006, only one discrimination case awarded compensation in the top band, a third of cases were in the middle band, and 46.9% were in the low band. Source: Equal Opportunities Review 167 (August 2007) p.20.
For more on calculating compensation generally, see www.drc-gb.org/the_law/legal_commentary/compensation_for_disability_di.aspx.html
If you wish to take the matter to court, an employment-related complaint goes to the employment tribunal. (They used to be called industrial tribunals.) Their website is www.employmenttribunals.gov.uk
See remedies above as to what a tribunal can award.
I am not going to try and tell anyone how to run an employment tribunal case (I have no experience of it) but I can make a few points:
The Employment Tribunal Service has an Enquiry Line on 0345 959 775, which can supply leaflets, forms and advice.
(For Northern Ireland - though I don't generally deal with it here - you can apparently get an information leaflet from the Office of Industrial Tribunal and Fair Employment Tribunals on tel: 01232 327666.)
Unless you were not employed by the relevant person, the new Employment Act 2002 rules mean you may have to take at least the first step in any internal greivance procedure before you can complain to a tribunal. Also if you (or the employer) don't follow through the grievance procedure, this may be reflected in the amount of any compensation ultimately awarded.
You need to make the application to the tribunal within three months, unless the tribunal extends this time (Schedule 3 para 3 #). The time runs from when the alleged discrimination was committed, not from the time any internal appeal or grievance procedure is concluded. The Employment Act 2002 gives an additional three month extension in some circumstances to allow time for a grievance procedure.
A copy of the complaint will go to ACAS (see above), who will normally intervene to see if a settlement is possible. Remember generally that cases are very often settled before the main hearing.
From 1st October 2004 there is a rule that the burden of proof shifts to the employer if the claimant makes out a prima facie case. More precisely: where the complainant proves facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has acted in a way which is unlawful under the employment provisions, the tribunal must uphold the complaint unless the respondent proves that he did not so act (new section 17A(1C)). This aligns the DDA with existing rules in the Sex Discrimination Act. The applicant does still have to produce a certain amount of evidence before the burden of proof will shift to the employer. The landmark Court of Appeal decision of Igen v Wong in February 2005 gives guidance on what the provision means. The effects of this decision are discussed in Court of Appeal strengthens guidelines on the Burden of Proof in discrimination claims (on DRC website) - 21 Feb 2005. The Court of Appeal gave further guidance in Madarassy v Nomura Ltd (link to bailii.org) (2007).
One issue is how are you going to show that the reason the employer acted as he did was because of the stammer. The complainant needs to prove this on a balance of probabilities, in other words on a more likely than not basis (subject to the new rule on shift of burden of proof). At the same time, though, the Tribunal bears in mind the difficulties that face a person who complains of unlawful discrimination. The questionnaire procedure may help - see next paragraph. To help draw an inference of discrimination it is possible to take into account the employer's actions prior to the alleged discrimination (e.g. dismissal) and even prior to the passing of the DDA itself (British Sugar plc v Kirker ).
This can be very useful. It is designed to help a complainant decide whether to make a complaint and how to formulate and present a case most effectively (section 56). The procedure involves sending a form to the employer asking relevant questions. If the employer unreasonably fails to reply within a reasonable period or his reply is evasive or equivocal, the tribunal can draw inferences from that. The procedure can be used either before a compliaint is made to an employment tribunal or after, subject to time limits. Questionnaire forms (which are part of a booklet) are obtainable from Jobcentres or the DRC, for example. They can also be downloaded from the DRC site (ref DL56)
Further, once proceedings are instituted the complainant can seek discovery and inspection of relevant documents, e.g. confidential reports on him and other applicants on the basis of which the employer took the decision.
An important matter generally is to consider what witnesses and other evidence to bring. Good quality evidence can be important in deciding the outcome. For example, you will need to consider how to show on a balance of probabilities that your stammer meets all the requirements of the "disability" definition (unless the other side agrees this). Tribunal cases have often failed for lack of medical evidence on disabilites. Possibilities include a speech therapist, or just a report from one, and perhaps people who know what effect your stammer has in different situations. For example, a speech and language therapist's report could include expert evidence that it does take you significantly longer than average to say things (if this is true), in accordance with the official guidelines on the meaning of disability. A list of questions to the expert can help to make sure a report covers what you want. Remember that although you need to argue the stammer is a "disability", you also want to be able to say that you can do the job OK! See Goodwin v Patent Office on the relevance of how the stammer is in court.
Important guidelines on expert evidence (eg from a speech and language therapist) were given by the Employment Appeal Tribunal in the De Keyser case in March 2001. For example, joint instruction of an expert is preferred. On a further point: since 1st February 1999 the Employment Tribunal Service has discretion to reimburse reasonable costs of attendance of medical professionals or production of medical reports, where the attendance or production is essential to the case; however the Disability Rights Commission has commented (2003) that anecdotal evidence and information from its casework indicate that the power to authorise payment for medical reports is not often used..
Usually each side bears their own legal costs, but the risk of being asked to pay the other side's costs if one is unsuccessful may be increasing in some cases.
Before 2001 it was extremely difficult to convince an employment tribunal to award costs. However, new rules from July 2001 oblige a tribunal to consider making costs orders in some circumstances. As at December 2002, there was evidence that tribunals were making more awards of costs under the new rules as compared with the old .
Under these new rules, for example, one situation in which the tribunal should consider awarding costs against a party is where his bringing or conduct of proceedings has been "misconceived", which "includes having no reasonable prospect of success".
Any chance of an applicant being required to pay the employer's costs may well be reduced if the applicant has sought advice before bringing the claim.
(See for England and Wales regulations 2004/1861, particularly Schedule 1 rule 40. The definition of "misconceived" is in reg.2. The 2004 regulations also provide that preparation time orders (instead of costs orders) may be made in favour of parties not legally represented. Before 1st October 2004 the relevant regulations were 2001/1171.)
A tribunal may make a restricted reporting order if it considers "evidence of a personal nature" is likely to be given.
An appeal on a point of law can be made to the Employment Appeal Tribunal. Their website is at www.employmentappeals.gov.uk
Section 55 covers victimisation and gives rights to help protect people bringing or involved in proceedings under the Act. The definition of victimisation was extended with effect from 1st October 2004.
In 2007 there was a House of Lords decision (link to DRC website) on the extent of the duty not to victimise.
Employees, agents and others knowingly aiding discrimination (e.g. recruitment consultants) may be liable as well as the employer (section 57 #).
However, an employer or other business is not liable for an act of an employee which is not "in the course of employment" or where the employer proves that he/it took such steps as were reasonably practicable to prevent the employee doing the act or acts of that description (section 58 #).
A possible course is to bring any proceedings against the employee(s) involved as well as the employer, in case the employer manages to avoid liability under this provision. However, the mental element of "knowledge" is crucial for an employee. Bringing proceedings against a relevant individual as well as the employer can also be useful in order to have that individual attend the hearing.
From 1st October 2004, instructions and pressure to discriminate become unlawful under the DDA, in line with other discrimination legislation. However, (only) the DRC will be entitled to take action (new sections 16C and 17B).
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© Allan Tyrer 1999-2007
Last updated 25th November, 2004 (part update 9th November 2007)
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