Key points about discrimination cases in a work situation
The key points this guide explains are:
- Where claims are brought
- Time limits for bringing a claim
- The standard and burden of proof
- What the Employment Tribunal can order you to do.
An Employment Tribunal can decide a complaint involving unlawful discrimination in a work situation.
Employment Tribunals can also decide cases about:
- Collective agreements, which can cover any terms of employment, such as pay or other benefits or working conditions.
- Equal pay and occupational pensions cases, which you can read more about in the Equality and Human Rights Commission guide: What equality law means for you as an employer: pay and benefits.
- Requirements an employer places on someone to discriminate against people as part of their job, for example, if someone works in a shop, telling them not to serve customers with a particular protected characteristic.
An Employment Tribunal can only hear a case from a member of the armed forces if their service complaint has been decided.
A worker must bring their claim within three months (less one day) of the claimed unlawful discrimination taking place.
There are two situations where this is slightly different:
- in equal pay cases, different time limits apply – see the Equality and Human Rights Commission guide: What equality law means for you as an employer: pay and benefits, and
- for cases involving the armed forces, the time limit is six months (less one day).
If a worker brings a claim after this, it is up to the Employment Tribunal to decide whether it is fair to everyone concerned, including both the employer and the worker, to allow a claim to be brought later than this.
When a claim concerns behaviour over a length of time, the time limit starts when the behaviour has ended.
An employer operates a mortgage scheme for married couples only. Someone who is a civil partner would be able to make a claim for unlawful discrimination because of sexual orientation to a tribunal at any time while the scheme continues to operate in favour of married couples or within three months of the scheme ceasing to operate in favour of married couples.
If the worker is complaining about a failure to do something, for example, a failure to make reasonable adjustments, then the three months begins when the decision was made not to do it. If there is no solid evidence of a decision, then the decision is assumed to have been made either:
- when the person who failed to do the thing does something else which shows they don’t intend to do it, or
- at the end of the time when they might reasonably have been expected to do the thing.
A wheelchair-user asks their employer to install a ramp to enable them to get over the kerb between the car park and the office entrance more easily. The employer indicates that they will do so but no work at all is carried out. After a period in which it would have been reasonable for the employer to commission the work, even though the employer has not made a positive decision not to install a ramp, they may be treated as having made that decision.
A tribunal can hear a claim if it is brought outside the time limit if the tribunal thinks that it would be ‘just and equitable’ (fair to both sides) for it to do this.
The standard of proof in discrimination cases is the usual one in civil (non-criminal) cases. Each side must try to prove the facts of their case are true on the balance of probabilities, in other words, that it is more likely than not in the view of the tribunal that their version of events is true.
If someone is claiming unlawful discrimination, harassment or victimisation against you, then the burden of proof begins with them. They must prove enough facts from which the tribunal can decide, without any other explanation, that the discrimination, harassment or victimisation has taken place.
Once they have done this, the burden shifts onto you to show that you or someone whose actions or omissions you were responsible for did not discriminate, harass or victimise the person making the claim.
The main remedies available to the Employment Tribunal are to:
- Make a declaration that you have discriminated.
- Award compensation to be paid for the financial loss the claimant has suffered (for example, loss of earnings), and damages for injury to the claimant’s feelings. There is no legal upper limit on the amount of compensation.
- Make a recommendation, requiring the employer to do something specific within a certain time to remove or reduce the bad effects which the claim has shown to exist on the individual.
Providing a reference or reinstating the person to their job, if the tribunal thinks this would work despite the previous history.
The Employment Tribunal can also make a recommendation requiring the employer to do something specific within a certain time to remove or reduce the bad effects which the claim has shown to exist on the wider workforce (although not in equal pay cases). This might be particularly applicable where the claimant has already left that employer so any individual recommendation would be pointless.
- Introducing an equal opportunities policy
- Ensuring its harassment policy is more effectively implemented
- Setting up a review panel to deal with equal opportunities and harassment/grievance procedures
- Re-training staff, or
- Making public the selection criteria used for transfer or promotion of staff.
If the recommendation relates to an individual and if an employer does not do what they have been told to do, the tribunal may order them to pay compensation, or an increased amount of compensation, to the claimant instead.
In cases of indirect discrimination, if you can prove that you did not intend what you did to be discriminatory, the tribunal must consider all of the remedies before looking at damages.
The tribunal can also order you to pay the legal costs and expenses of the person bringing the claim on top of your own legal costs and expenses, although this does not often happen in Employment Tribunal cases.
Taking legal proceedings can be a stressful and time consuming experience. It may be in the best interest of everyone to try to settle a dispute i.e. reach an agreement with your worker where possible to avoid going to an employment tribunal hearing (or the court where the case relates to an occupational pension scheme). There are three ways in which a dispute can be settled:
- Agreement between you and the worker
- Acas conciliation service
- Qualifying compromise agreement
Agreement between you and the worker
Before a claim is issued by your worker in the employment tribunal, you can agree to settle a dispute directly with them. An agreement to settle a dispute can include any terms that you agree with the worker and can cover compensation, future actions by you and the worker and other lawful matters.
A worker raises a grievance with her employers alleging a failure to make reasonable adjustments. The employer investigates the worker's complaint and upholds her grievance. The employer agrees with the worker to put the reasonable adjustments in place and offers her a written apology, which she accepts.
You may also seek assistance from Acas which offers a conciliation service for parties in dispute, whether or not a claim has been made to an employment tribunal.
A worker raises a grievance with her employer alleging sex discrimination. The employer dismisses her grievance. She makes a claim to the tribunal but before the hearing she seeks assistance from Acas to conciliate in the dispute. As a result of the conciliation, the worker and her employer agree to settle the claim on terms which are agreeable to both of them.
Qualifying compromise agreement
You and the worker can also settle a claim or potential claim to the Employment Tribunal by way of a 'qualifying compromise contract'. There are specific conditions which must be satisfied if a claim is settled in this way:
- the agreement must be in writing
- the conditions in the agreement must be tailored to the circumstances of the claim
- the worker must have received legal advice about the terms of the agreement from an independent advisor who is insured against the risk of a claim arising from that advice
- the person who provides the worker with independent legal advice on the compromise agreement must be a lawyer; a trade union representative with written authority from the trade union or an advice centre worker with written authority from the centre to give this advice.
Last Updated: 23 Sep 2014