This page deals with seeking to resolve an employment dispute, either without going to court or by taking a claim to an Employment Tribunal. For more resources, there is a Helpful links section below.
Note: there are no longer employment tribunal fees, but if you bring a claim consider trying to get an anonymity order so your name does not become searchable on the internet in the online tribunal decision database.
On separate pages:
- Sources of help and advice
- Remedies (Compensation and recommendations)
- Who is liable – companies, public authorities any anyone else are normally liable for actions of employees or other agents. Furthermore, individuals involved in discriminating against or harassing someone are often personally liable.
You can approach a citizens advice bureau, Law Centre, trade union, or solicitor. Advice can be useful in helping to argue a case. See below Getting advice.
Trying to resolve a dispute
You might talk to the employer informally at first. If that is not successful, an existing employee might consider grievance or internal appeals procedures. Legal rules encourage the use of internal procedures before going to a tribunal. See below Talking to the employer.
ACAS can be brought in to conciliate (below ACAS – conciliation), and indeed must be notified before a claim is made, see next heading.
To be binding a settlement agreement must meet certain conditions, unless made with the assistance of an ACAS conciliation officer. In particular, the employee must have received independent legal advice.
You must normally notify ACAS before bringing a tribunal claim – see separate page ‘Early Conciliation’ – all claims must go first to ACAS. This gives an opportunity to resolve the dispute through conciliation before going to a tribunal.
The time limit is three months (less one day), plus any time extension under the ‘Early Conciliation’ rules, though, the tribunal will sometimes allow a late claim. Basically time starts to run when the discrimination happened, but there are sometimes tricky rules as to when this was. It is important that any internal grievance or appeals procedure does not stop time running – you need make the tribunal claim within 3 months of the actual discrimination.
Some points to consider:
- Fees are no longer required to bring a tribunal claims – see separate page Fees for tribunal claims – now ruled unlawful.
- Any compensation you get may be reduced if you haven’t first taken appropriate steps to resolve the dispute internally. See separate page Grievance and disciplinary procedures: ACAS Code.
- The burden of proof shifts to the employer if the claimant makes out a prima facie case, but not as regards proving disability.
- It is for the claimant to show he has a ‘disability’, if this is disputed. For this, and some other issues, expert evidence can be very useful.
- It is unusual to be ordered to pay the employer’s legal costs, but there are situations where this can happen: Risk on costs?
Your name appearing in online database of decisions – anonymity orders
Since 2017 Employment Tribunal decisions are placed online, and so claimants’ (and others’) names can show up on internet searches by a prospective employer. Claimants (or employers) may wish to try and obtain an anonymity order, so that names do not appear on the internet. See The online tribunal decision database, and anonymity orders.
The main remedy available from a tribunal is compensation. This can include loss of earnings and injury to feelings. Compensation for injury to feelings is determined according to three ‘Vento bands’ ranging from about £660 to £33,000.
Bear in mind though that in practice over half of claimants who win a case are unable to recover the full amount of compensation from the employer (over a third recover none of it). Claimants who win a case may have a similar problem getting repayment of tribunal fees from the employer. However, many claims are settled without going to the tribunal and recovery rates then are likely much higher See Enforcement: will I actually receive the compensation?
A tribunal can also make recommendations.
Note: material in links may be out of date since the Supreme Court held in July 2017 that the system of employment tribunal fees was unlawful.
- Employment Tribunals: A practical guide for claimants starting a claim in the Employment Tribunal (pdf) by solicitors firm Leigh Day.
- Dealing with discrimination in employment (EHRC website)
- ‘Discrimination; your rights – what can you do (gov.uk).
Options before going to a tribunal
(Also, in a relatively small number of cases the Equality and Human Rights Commission may actually assist in bringing legal proceedings – see EHRC page).
Talking to the employer
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 a person with special responsibility for diversity or equal rights.
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.
The employer’s occupational health adviser may also be able to help. OH practitioners are doctors or nurses, and have a duty of confidentiality. Save in very exceptional circumstances, they need the employee’s consent before disclosing information to managers or Human Resources.
Legal rules encourage employees to use any internal grievance procedure before going to an employment tribunal. Compensation can be adjusted down or up if the employee or employer unreasonably fails to comply with an ACAS Code of Practice – 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 event, 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 above Helpful links.
ACAS – conciliation
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 an employment tribunal application is made. In any case though, from May 2014 it is normally a legal requirement to notify ACAS of a claim before taking it to an employment tribunal – see ‘Early conciliation’ – all claims will go first to ACAS.
The Northern Ireland equivalent of ACAS is the Labour Relations Agency – www.lra.org.uk.
To help in taking a grievance, or especially in 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 – or at least legal help in preparing your case – may also help establish favourable precedents for people who stammer more generally.
See below Asking questions.
‘Early conciliation’ – claim must go to ACAS before a tribunal claim
Normally you must submit a complaint to ACAS before putting in a tribunal claim. See separate page ‘Early conciliation’ – all claims must go to ACAS. This gives an opportunity to resolve the dispute through conciliation before going to a tribunal.
This doesn’t mean the claimant or employer has to engage with ACAS. If either party is unwilling to conciliate, or if conciliation is unsuccessful, the claim can go to a tribual. The normal time limit for submitting a claim is extended to allow for the conciliation period.
Going to the tribunal
If you wish to take the matter to court, an employment-related complaint goes to the employment tribunal. A tribunal can award compensation, and can also make recommendations. See Remedies (separate page).
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. For more guidance, see above Helpful links.
Fees no longer payable
Employment tribunal fees are no longer payable to bring a claim – see separate page Fees for tribunal claims – now ruled unlawful.
Employment Tribunal website and Enquiry Line
There is Employment Tribunal guidance at www.gov.uk/courts-tribunals/employment-tribunal (see links on left of that webpage), and there is an Enquiry Line on 0845 795 9775.
(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.)
Grievance and disciplinary procedures
If employees or employers unreasonably fail to follow the ACAS Code of Practice on this, they may be penalised through compensation being decreased or increased. See Grievance and disciplinary procedures: ACAS Code.
Time limit for applications
You need to make the application to the tribunal within three months (less one day), plus any time extension under the ‘Early Concilition’ rules, unless the tribunal agrees to allow a late claim (EqA s.123(2)). Broadly, the time runs from when the alleged discrimination was committed, and not from the time where any internal appeal or grievance procedure is concluded.
Where there is a continuing act, the time limit 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 thompsonstradeunion.law). A finding that something is a continuing act may substantially increase compensation, since discrimination going back well before the
Particularly beware the time limits where there is a (continuing) failure to make a reasonable adjustment. There are special rules on when a ‘failure’ is seen as happening. Delaying a claim in the hope that the employer will eventually make the adjustment may mean the claim is out of time. See Reasonable adjustment rules: time limits.
Tribunals have a discretionary power to extend the time limit (EqA s.123(2)). The tribunal should consider whether an extension is ‘just and equitable’ – for more on this see Employment tribunal claim time limits (dfalaw.co.uk). It has been said that a tribunal’s power to extend time need not be used sparingly – a tribunal should not proceed on the basis that an extension will be refused in all but exceptional circumstances (Malcolm v Dundee City Council (link to bailii.org), 2012).
Who to claim against
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.
Burden of proof
On burden of proof, including a rule which may shift the burden of proof over to the employer, see Proving discrimination: Burden of proof.
However that shift in burden of proof does not apply as regards –
It is for the claimant to show on a balance of probabilities that he or she has a disability as defined in the Equality Act, if the employer disputes that. This is likely to require at least preparing a disability impact statement. See Proving disability: impact statements and expert reports.
Asking questions can be very useful to help a claimant decide whether it is worth bringing a case in the first place, and if so how to formulate and present a case most effectively. It may also in some cases encourage an employer to settle, if answering the questions makes it apparent to the employer that they will have difficulty defending the case. The formal ‘questions procedure’ is being abolished, but one can still ask questions. See Proving discrimination: Questions procedure.
Seeing relevant documents
Once proceedings are instituted, the claimant can seek discovery and inspection of relevant documents (unless privileged), e.g. notes of interviews, and the employer’s internal and external emails. Employer’s witness statements will also be disclosed.
As to the approach on confidential documents, see Employment Law Solicitor Chris Hadrill on applications for disclosure in the Employment Tribunal (redmans.co.uk), 17/10/13.
Taking witness statements as read
Tribunal rules were changed in 2012 so as to require witness statements to be taken as read, unless a judge or tribunal directs otherwise. So the normal position is now that witnesses do not have to read out their witness statements. This will be welcome to many witnesses who stammer. Witnesses can still be cross-examined at the hearing on their witness statements. It is now rule 43 of SI 2013/1237.
Even before the 2012 change, in 2010 the Employment Appeal Tribunal stressed that it is not a requirement of fairness in every case that the statements of every witness be read aloud in full, or indeed at all: Mehta v. Child Support Agency (2010) (link to bailii.org), particularly para 16. For an outline: Reading statements aloud (link to etclaims.co.uk), 8/12/10.
Risk on costs?
Usually each side bears their own legal costs in Employment Tribunals. However, in a small proportion of cases an unsuccessful applicant is asked to pay the other side’s costs.
Situations in which a tribunal will consider awarding costs against a party include (amongst other things) where the claimant has acted unreasonably in conducting the proceedings, or where a claim had no reasonable prospect of success.
A couple of links:
- Paying costs after an employment tribunal claim (citizensadvice.org.uk);
- http://etclaims.co.uk/2009/04/what-the-costs-statistics-tell-us-about-cost-threats/ – on costs threat letters (based on older rules).
(See for the regulations in England and Wales SI 2013/1237, from rule 76. Ability to pay can be taken into account. The 2013 regulations also provide that preparation time orders (instead of costs orders) may be made in favour of parties not legally represented.)
Keeping things out of the media, and particularly off the internet?
A tribunal may make order preventing or restricting disclosure in some circumstances under rule 50 of SI 2013/1237, to protect particularly privacy rights under Article 8 of the European Human Rights Convention.
This is now particularly important because since 2017 Employment Tribunal decisions are placed online, so claimant’s (and others’) names can show up on internet searches by a prospective employer, or indeed anyone else. Claimants (or employers) may wish to try and obtain an anonymity order, so that names do not appear on the internet. See The online tribunal decision database, and anonymity orders.
An appeal on a point of law can be made to the Employment Appeal Tribunal – www.gov.uk/appeal-employment-appeal-tribunal – and potentially further.
Reaching a settlement – settlement agreements
Settlement agreements in general
For a general discussion of settlement agreements, see
- Slater & Gordon information sheet: ‘Settlement Agreements’ (pdf);
- Legal insight: Compromise agreements (hrzone.co.uk).
The discussion below is specifically on preconditions in the Equality Act for a settlement agreement to be binding.
‘Settlement agreements’ were previously called ‘compromise contracts’, but were renamed as from 29th July 2013. The Government believed this will help to avoid any party refusing to sign an agreement on the grounds that they do not want to be seen as ‘compromising’.
Preconditions for an agreement to be binding: Introduction
For settlements not made through ACAS, an agreement with the employer is only binding if it is a ‘qualifying settlement agreement’ (s.144(4) EqA). This means it meet certain conditions. the most important of which is that the claimant received independent legal advice (s.147 EqA).
Issue of who is an ‘independent adviser’
There was some doubt whether s.147 EqA excluded a complainant’s legal adviser from being an ‘independent adviser’. This would have been odd, since it is clearly sensible that advice from a claimant’s own lawyer should be enough to make a compromise agreement binding.
An amendment has now clarified that the claimant’s own lawyer can be an ‘independent adviser’. This took effect on 6th April 2012: The Equality Act 2010 (Amendment) Order 2012 (link to legislation.gov.uk). According to the Government Equalities Office, even before April 2012 the claimant’s lawyer was not excluded from being an ‘independent adviser’.
Independent advice need not be on merits
The employer will commonly pay or contribute to the employee’s legal fees for getting advice on a settlement agreement. However, the employer will often not pay for advice on the merits of potential legal claims against it, i.e. on whether the agreement represents a good deal for the employee. See Slater & Gordon information sheet: ‘Settlement Agreements’ (pdf) – heading ‘Costs’.
McWilliam v Glasgow City Council (themanagementguru.blogspot.co.uk) (2011), Employment Appeal Tribunal
This case held that compromise agreements entered into by Glasgow City Council to settle equal pay claims prevented the women affected from pursuing those claims, even though their solicitors had not advised whether or not the settlements on offer were a ‘good deal’.
The Equality Act includes provisions against victimisation of people bringing or involved in proceedings under the Act.