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| Home | Overview | Disability | Discrimination | Employment | Services | Education | PSED | 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
Reaching a settlement - compromise agreements
Remedies, including compensation
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.
Legal rules either require or encourage employees to use any internal grievance procedure before going to an employment tribunal. There are statutory procedures or (where new rules apply) an ACAS Code of Practice that should be followed by both employer and employee - see Grievance and disciplinary procedures.
For more, see 'Taking a disability case' (link to EHRC website).
To help in taking a grievance or, if need be, going to an employment tribunal, 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.
According to statistics, legally represented applicants have a much greater success rate in tribunal claims than others. Legal representation in tribunals may also help establish favourable precedents for people who stammer.
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.
You can approach ACAS (www.acas.org.uk) to help try and reach a settlement. ACAS can get involved before or after a tribunal application has been made, and indeed has certain duties to conciliate (s18 Employment Tribunals Act 1996). ACAS links include their pages on pre-claim conciliation and on conciliation generally.
The Northern Ireland equivalent of ACAS is the Labour Relations Agency - www.lra.org.uk.
Agreements made with the assistance of an ACAS conciliation officer (see above) will be binding. For settlements not made through ACAS, a compromise agreement with the employer is only binding if it meets certain conditions. The most important condition for non-ACAS ageements is that the claimant must have received specified independant legal advice (Schedule 3A Part 1, para 13.21 of Code).
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 is likely to be taken to appeal.
Under DDA s.17A, a tribunal can make an order declaring the parties' rights, order compensation, and/or recommend that the employer take remedial action.
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 £30,000. 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'. 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 2009, 66% of awards for injury to feelings (including aggravated damages) in disability discrimiation decisions were for £5,000 or more. Only one award (out of 73) was for less than £1000, with six being for £2000 or more. Source: Equal Opportunities Review, July 2010, pp8-13.
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).
As regards compensation for loss of earnings:
For more on calculating compensation generally, see the legacy DRC website at http://83.137.212.42/SiteArchive/drc_gb/the_law/legal_commentary/compensation_for_disability_di.aspx.html
In April 2010, new arrangements 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).
An example is that a tribunal might, if appropriate, recommend that an employer arrange disability awareness training for employees whose behaviour contributed to the finding of discrimination. A similar recommendation was made on race discrimination in London Borough of Southwark v Ayton (2003) (link to Word doc on EAT 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.)
Recommendations must be for the purpose of obviating or reducing the adverse effect on the claimant of an act of discrimination to which the complaint relates. This has often meant that no recommendation is made where a complainant has left the employment, because a recommendation would only benefit remaining staff. However, in Ghali v Transperfect Translations Ltd (August 2009, Tribunal ref 3201752/08, on race discrimination), an Employment Tribunal made a recommendation that some employees should undergo training in relation to discrimination, since as well as being good for the company this would be a consolation to the claimant and help alleviate the injury to his feelings. (See also proposed changes in Equality Act 2010.)
Failure by the employer to comply with a recommendation can result in increased compensation.
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.employmenttribunalsni.co.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 grievance/disciplinary procedures, and ACAS Code.
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 (though there are complications there which I don't go into), and 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.
Particularly beware the time limits where there is a continuing failure to make a reasonable adjustment - Matuszowicz v Kingston Upon Hull City Council (2009)
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 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 (DDA s.17A(1C)).
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).
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 (DDA s.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.
DDA Questionnaire forms (which are part of a booklet) are obtainable from Jobcentre Plus or at www.equalityhumanrights.com/uploaded_files/dl56_questionnaire_word.doc
These forms apply to claims under the DDA as opposed to the new Equality Act, i.e. broadly where the discrimination happened before 1st October 2010. See Which Act applies: Equality Act or DDA? For the newer Equality Act forms, see my post-Equality Act page.
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.
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 OPSI website), 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.)
It would be a rare circumstance, but what if the employer appeals as far as the Court of Appeal? In St Albans Girls' School v Neary (link to bailii.org) the claimant had won before the Employment Tribunal and the Appeal Tribunal, but lost when the employer appealed to the Court of Appeal. The latter refused to make an order for costs against him where he had been "pitched against his will into a cost-bearing jurisdiction." It remains to be seen whether this decision is followed elsewhere in the Court of Appeal.
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 - www.employmentappeals.gov.uk - and potentially further.
DDA s.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.
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Last updated 22nd July, 2010
Employment Direct discrimination
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