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These pages do not apply outside the United Kingdom.
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| Home | Overview | Disability | Discrimination | Employment | Services | Education | PSED | Benefits | Business | Advice | Links | More... |
|
These pages do not apply outside the United Kingdom.
|
| "EqA" or "Equality Act" means the Equality Act 2010 (link to legislation.gov.uk)
The "Employment Code" |
Note: this page covers the Equality Act 2010 position from 1st October 2010. See also pre-Equality Act position and Which Act applies: Equality Act or DDA?
Options to consider
Reaching a settlement - compromise agreements
Remedies: Compensation
Remedies: Recommendations
Going to court
Victimisation
Remember you can contact the Equality and Human Rights Commission helpline.
(Also, in a relatively small number of cases the Equality and Human Rights Commission may actually assist in bringing legal proceedings - see EHRC section).
At least if you are employed, the appropriate course will normally be to take up the complaint direct with the employer, perhaps informally at first, and if that is not successful then through their grievance or internal appeals procedure. Approaching a person in the personnel department may sometimes be easier than approaching your manager. There may even be an equal rights officer.
From the Employment Code, para 17.92:
An employer has a procedure that allows a grievance relating to harassment to be raised with a designated experienced manager. This avoids the possibility of an allegation of harassment having to be raised with a line manager who may be the perpetrator of the harassment.
Legal rules encourage employees to use any internal grievance procedure before going to an employment tribunal. There is an ACAS Code of Practice that should be followed by both employer and employee - see Grievance and disciplinary procedures: ACAS Code.
In many cases the worker has a legal right to have someone accompany him or her to grievance or disciplinary meetings. In any case, adjustments should be made to enable someone who stammers to have their say. See Examples of reasonable adjusments: Disciplinary and grievance procedures.
For more, see 'Taking a disability case' (link to EHRC website).
You can approach ACAS (www.acas.org.uk) to help try and reach an agreement. ACAS can often offer free, impartial conciliation - either before or after a tribunal application has been made.
ACAS's 'pre-claim conciliation' service was expanded in April 2009 to help employers and employees resolve workplace disputes swiftly and with minimal formality before they escalate into litigation. See Pre-claim conciliation (link to acas.org.uk).
ACAS conciliation can also take place after a tribunal claim has been entered: see Conciliation (link to acas.org.uk). ACAS has duties as regards conciliation under s.18(2)(3) Tribunals Act 1996. ACAS also offers Mediation (link to acas.org.uk).
The Northern Ireland equivalent of ACAS is the Labour Relations Agency - www.lra.org.uk.
A possible alternative to ACAS for England, Scotland and Wales is that you could approach the EHRC helpline and ask to be referred to the Equalities Mediation Service: www.equalities-mediation.org.uk, which is also a free service.
To help in taking a grievance, or especially making a claim to an employment tribunal (if need be), you may wish to approach a relevant organisation such as a trade union (they often give free advice on employment issues) a staff association, or the Citizens Advice Bureau / Law Centre, or get other legal advice. See my web page on Sources of Help and Advice.
The law can be complicated. Also advisers can help sort out what facts and arguments are most important, and help put over points more strongly. So it is often a good idea to get advice if you can. As well as helping your own case, legal representation in tribunals may also help establish favourable precedents for people who stammer more generally.
This procedure, discussed below, enables an actual or potential claimant to ask relevant questions of the employer. The procedure can be used even before any tribunal proceedings have been started, subject to time limits.
Agreements made with the assistance of an ACAS conciliation officer (see above) will be binding (s.144(4) EqA).
For settlements not made through ACAS, an agreement with the employer is only binding if it is a 'qualifying compromise contract' (s.144(4) EqA). This means the agreement must meet certain conditions. The most important condition is that the claimant received independent legal advice (s.147 EqA).
There has been much discussion of the new Equality Act definition of who can be an 'independent adviser' so as to make a (non-ACAS) agreement enforceable (s.147 EqA). The Government has agreed it will amend the legislation to clarify it.
On a literal reading of s.147 one might easily come to the view that the lawyer who has been advising the claimant on the claim cannot also be an 'independent adviser' for the claimant on the compromise. However, this would be rather ridiculous. According to the Government Equalities Office this is not the correct interpretation - its view is that the claimant's lawyer is not excluded from being an 'independent adviser'. Its view is backed by at least two QCs, and it seems probable that a court will agree, though at least one QC takes the opposite view. Some links on this issue:
The employer will commonly pay or contribute to the employee's legal fees for getting advice on a compromise agreement. However, the employer will often not pay for advice on the merits of potential legal claims against it, i.e. whether or not the agreement represents a good deal for the employee. On this and also on compromise agreements generally, see Russell Jones & Walker information sheet: 'Compromise Agreements' (pdf).
An employment tribunal in McWilliam v Glasgow City Council (pdf, link to danielbarnett.co.uk) (2010) considered the validity of compromise agreements on equal pay claims, where there is a similar requirement to receive independent legal advice. The tribunal held that the agreement could be binding even though the advice had not considered whether the settlement was a 'good deal' for the claimant. The solicitors had made clear to claimants that their advice was limited in that way. This is only an employment tribunal case - it does not have the authority of an appeal case and may be taken to appeal.
Under EqA s.124(2), a tribunal can make an order declaring the parties' rights, order compensation, and/or recommend that the employer take remedial action. (See below for Recommendations.)
Compensation can include loss of earnings, injury to feelings, and aggravated or exemplary damages (there is a longer summary at Employment Code 15.40-43). There is no legal limit on the amount of compensation that can be awarded.
For injury to feelings, 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'. These should be increased for inflation, and new figures were set out by the Employment Appeal Tribunal in Da'Bell v NSPCC (link to bailii.org) in 2009. The figures below are the increased figures, showing the original figures in brackets:
In 2010, the average injury to feelings award (including aggravated damages) in disability discrimination cases was just over £6,000. 60% of awards fell within the low Vento band, ie. up to £6,000. 20 awards (out of 85) were for £10,000 or more. The highest award was £16,000, though in 2009 there were 6 awards above £20,000. Source: Equal Opportunities Review, July 2011, pp8-18.
A clamant can recover for injury to feelings attributable to the act complained of, a dismissal for example, without needing to attribute the injury specifically to knowledge of discrimination (Taylor v XLN Telecom (external link), EAT, 2010).
Broadly, the aim is to put the employee (or job applicant) in the financial position he would have been in had there been no discrimination. There is a great deal that could be said about how to calculate compensation for loss of earnings. I shall just pull out a couple of points:
There are special provisons on considering whether or not compensation is appropriate for unintentional indirect discrimination (s.124(4)(5) EqA, Employment Code para 15.44-45). However, this may be less relevant for disability claims, since there will often also be claims under the reasonable adjustment duty and 'discrimination arising from disability'.
Research published by the Ministry of Justice in 2009 (pdf, link to justice.gov.uk) indicated that in a 16 month period only 53% of successful tribunal claimants had received their full award, and 39% had received nothing.
ln April 2010, a new fast-track scheme came into force in England and Wales to help enforcement where compensation has been awarded but not paid: Fast-track employment tribunal scheme (link to Personnel Today article, 19/5/10). For how to use the fast-track scheme, as well as more on enforcement generally, see Enforcing an Employment Tribunal decision (link to direct.gov.uk).
In June 2011, Equal Opportunities Review (EOR) reported that over the first year of operation of the fast-track scheme, 57% of awards were found unenforceable against the employer, the most common reason being insolvency. The Government guarantees some types of employment payment in the event of insolvency, though the 'Redundancy Fund', but apparently not discrimination claims. EOR (June 2011) questions whether the exclusion of discrimination claims from this guarantee is compatible with the EU Insolvency Protection Directive and with the anti-discrimination directives.
The new Equality Act 2010 gives employment tribunals a wider power to make recommendations in discrimination cases (EqA s.124(3)).
Under previous law, a tribunal could only make a recommendation which directly benefits the claimant. This could allow considerable scope where the claimant was still employed. So, in Lycee Francais Charles de Gaulle v Delambre (link to bailii.org) (EAT, 2011) where the claimant remained in her post, the employer was recommended to review its employment policies and undertake a programme of equality and diversity training. Another case recommending awareness training where the employee remained was London Borough of Southwark v Ayton (2003) (link to Word doc on EAT website). Often though the claimant will have left the organisation, so that normally no recommendation can be made - now under Equality Act 2010 (below) a recommendation as in the Delambre case might be made even though the claimant had left and so could not benefit directly.
The previous law continues to be relevant for some time, for proceedings started before 1st October 2010 and also, broadly, where the discrimination or harassment happened before 1st October 2010. See previous law (DDA) and Which Act applies: Equality Act or DDA?
Under the new rules in EqA s.124, broadly where the discrimination/harassment was or after 1st October, a tribunal is allowed to make a recommendation to take certain steps within a specified period "for the purpose of obviating or reducing the adverse effect of any matter to which the proceedings relate", even if it only benefits people other than the complainant. This should help prevent similar types of discrimination occurring in future.
The Equality Act Explanatory Notes (link to legislation.gov.uk) para 406 says a tribunal could, for example, recommend that the employer:
For example, a tribunal might recommend awareness training in communication disabilities. Under the new rules, a tribunal could recommend this even it the complainant had left the company and so would not benefit.
Failure by the employer to comply with a recommendation, without reasonable excuse, can result in increased compensation in so far as the recommendation relates to the complainant (EqA s.124(7)).
A recommendation is not enforceable so far as it relates only to staff other than the complainant. However, the Government has said that if the employer does not comply with a recommendation and a further claim is made, the tribunal will be able to take the earlier recommendation into account, which may result in a tougher ruling. Tribunal judgments, including recommendations, should in due course be available on the Tribunal Service's website so one can search for previous recommendations made to an employer.
The Government consulted on some practical points related to the extended power, including what guidance should be made available, in Section 4 of the BERR Dispute Resolution: Secondary legislation consultation - www.berr.gov.uk/consultations/page46889.html
The Solicitor General gave some clarification on the new power in response to questions in the House of Commons Committee on the Equality Bill. She was asked among other things what length of specified period was envisaged, and what leeway should organisations have to achieve a particular outcome since they may come up with ways of achieving it which are new and different from those envisioned by the tribunal. The Solicitor General said:
"The key is that any recommendations made to benefit the broader work force and indeed the business would have to be proportionate to the case that is brought, otherwise it would be unlawful. That is a general principle that has found greater emphasis since we brought the European convention into our law. To answer the specific point about time, it would have to be a reasonable period. There might be more creative ways of doing something that a tribunal recommends. The sensible thing would be for the parties to get together first, discuss it and suggest it to the tribunal, which could then recommend it. If parties thought there were a better way forward, that approach would give the tribunal the opportunity to avoid recommending something that was perhaps less suitable...
[And in respose to whether tribunals tend to mandate outcomes or process:] Some typical recommendations that might help include taking steps to implement a harassment policy more effectively; providing equal opportunities training for staff involved in promotion procedures; and introducing more transparent selection criteria in recruitment transfer or promotion processes. Those seem to be fairly process-based..." (col 512-513, Public Bill Cttee, 25th June 2009 (link to UK Parliament website))
Recommendations made in Wakefield v HM Land Registry, a stammering case, were subsequently revoked by the tribunal because they failed to specify a period within which the employer must take the action. (The tribunal's decision as a whole was also overturned on appeal, for other reasons.) This was under pre-Equality Act rules, but EqA s.124 also says there should be a specified period.
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.
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 a website with information at www.employmenttribunals.gov.uk, and their Enquiry Line on 08457 959 775 can supply leaflets, forms and advice.
(For Northern Ireland - though I don't generally deal with it here - the website of the Office of Industrial Tribunals and Fair Employment Tribunal is www.employmenttribunalsni.co.uk.)
If employees or employers unreasonably fail to follow a certain ACAS Code of Practice, they may be penalised through compensation being decreased or increased. This is under rules which took effect from April 2009 subject to transitional provisions, and which replace a stricter regime. More on ACAS Code and grievance/disciplinary procedure.
You need to make the application to the tribunal within three months (less one day), unless the tribunal extends this time (EqA s.123(2)). Broadly, the time runs from when the alleged discrimination was committed (though there are complications there which I don't go into), and not from the time any internal appeal or grievance procedure is concluded.
Where there is a continuing act, the three months starts at the end of the act (EqA s.123(3(a)). It is a question on the facts whether there is an act extending over a period, or a succession of unconnected or isolated specific acts. The distinction has been considered in various cases - see for example Hendricks v Commissioner of Police for the Metropolis (link to eortrial.co.uk). A finding that something is a continuing act may substantially increase compensation, since discrimination going back well before the 3 month time limit may be included as part of the continuing act.
Particularly beware the time limits where there is a continuing failure to make a reasonable adjustment. See Reasonable adjustment rules: time limits.
Where there has been unlawful discrimination or harassment, the employer will very often be liable. But it may make sense also to claim against the individual involved who may be liable, or against others who may be liable - for example as someone who gave instructions to discriminate. See Who is liable under the Equality Act.
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.
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 decide, in the absence of an adequate explanation, that the respondent has acted unlawfully, the tribunal must uphold the complaint unless the respondent proves that he did not (EqA s.136).
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. There is a summary of the decision at Burden of proof guidelines revised (link to eortrial.co.uk). The Court of Appeal gave further guidance in Madarassy v Nomura Ltd (link to bailii.org) (2007).
This procedure 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 (EqA s.138).
The procedure involves sending a form to the employer asking relevant questions. If the employer unreasonably fails to reply within 8 weeks or its reply is evasive or equivocal, the tribunal can draw inferences from that. The procedure can be used either before a complaint is made to an employment tribunal or after, subject to time limits.
Questions and answers forms for the new Equality Act are available online: Equality Act 2010 forms for obtaining information (link to equalities.gov.uk). These new forms apply to claims under the Equality Act as opposed to the DDA: see Which Act applies: Equality Act or DDA? For the older DDA forms, see my pre-Equality Act page.
One way in which the Equality Act 2010 streamlines the questions procedure is by replacing a series of nine individual questionnaires about possible discrimination (for sex, disability, sexual orientation etc), with a single set of paperwork (guidance and forms) for all types of discrimination other than equal pay.
The regulations prescribing the new forms are The Equality Act 2010 (Obtaining Information) Order 2010 (pdf, link to legislation.gov.uk). Also Explanatory Memorandum (pdf, link to legislation.gov.uk) about the Order.
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.
(Note: this sub-heading has yet to be reviewed/updated.)
Some 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 commented (in 2003) that anecdotal evidence and information from its casework indicated that the power to authorise payment for medical reports was not often used.
Link: The use of medical evidence in DDA cases (link to oldsquare.co.uk), 2004.
Usually each side bears their own legal costs in Employment Tribunals, but in a small proportion of cases an unsuccessful applicant is asked to pay the other side's costs. See blog comment on costs threat letters - http://etclaims.co.uk/2009/04/what-the-costs-statistics-tell-us-about-cost-threats/
Under rules that took effect from July 2001, one situation in which a tribunal will consider awarding costs against a party is where his bringing or conduct of the 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 (link to legislation.gov.uk), 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.)
A tribunal may make a restricted reporting order if it considers "evidence of a personal nature" is likely to be given (2004/1861 Sch 1 para 50).
An appeal on a point of law can be made to the Employment Appeal Tribunal - www.employmentappeals.gov.uk - and potentially further.
The Equality Act includes provisions against victimisation of people bringing or involved in proceedings under the Act.
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Last updated 24th June, 2011
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