There are essentially three questions an adviser should start with in any possible case of discrimination:
The sections below consider these three questions.
There are clearly a number of different Acts and Statutory Instruments under which a claim may be brought in the employment tribunal or in a county court: for example, the Sex Discrimination Act 1975, the Race Relations Act 1976 and the Disability Discrimination Act 1995. Broadly speaking, however, people who fall into the following categories will usually be protected by the legislation:
It is important to note that there are different legislative interpretative concepts of ‘employment’, which may not always fit the typical example. In the Race Relations Act 1976, the concept of ‘employment’ encompasses employment under a contract of service or of apprenticeship or a contract personally to execute any work or labour. The latter may be apt to catch those who would ordinarily consider themselves self employed or independent contractors where the work is personally rendered.
Claims in the ‘employment field’ are usually brought in the Employment Tribunal. Other claims normally have to be brought in the County Court. As a claim can be struck out if it is pursued in the wrong venue it is important for advisers to check the relevant part of the Act or Statutory Instrument to determine where the claim ought to proceed.
Job applicants will be protected against discrimination:
Employees will be protected against discrimination:
Contract workers will be protected against discrimination:
Protection is normally confined to workers or employees who are employed in Great Britain though there are a number of specific exceptions.
There is no requirement for a period of minimum service in order to qualify for the protection of the various anti-discrimination statutes and casual workers, part time workers, temporary workers and workers on fixed term contracts may all potential claim under the various Acts.
A complainant seeking to bring a claim of race, sex, age, disability, religion or belief or sexual orientation discrimination in employment will have to raise a statutory grievance, which is effectively a complaint in writing which must be sent to the employer. (This is not necessary where the complaint is about an actual dismissal, but is necessary where constructive dismissal is alleged.)
Once it has been established that the complainant fulfils the basic criteria and has met the jurisdictional hurdle for protection under the relevant legislative provisions, it is then essential to consider whether the complainant possesses the specific criterion or criteria required to qualify for protection under the relevant Act/SI.
In some cases this may be a very simple exercise, so in race discrimination cases the ‘on racial grounds’ causal element of the discrimination formulation can be identified with ease, for example a black employee has been bullied by a white line manager. The complainant has to identify the race, colour, nationality, national origins or ethnic origins being relied on.
However, in other cases, this may not be so simple. In disability discrimination cases, the question of whether a complainant is disabled within the statutory definition may necessitate extensive medical evidence and a separate hearing to determine the question. In a claim of discrimination on the grounds of religion or belief, there may be a question as to whether the belief relied on by the complainant will qualify for protection in circumstances where it is not well known or recognised.
The identity of the person or organisation who or which will be responsible for the acts of discrimination complained of will be a direct corollary to the identity of the complainant as set out in 1.1. Again, it is worth remembering that the definition of ‘employee’ or ‘worker’ can be much wider than expected. Secondly, the mere label placed on a relationship by the parties themselves or a third party such as the Inland Revenue will not be decisive though it may be illuminating. This section looks at the general scope of liability of an employer.
An employer can be a person, a firm, a limited company or an organisation such as a charity. The employer will usually be the party responsible for paying the employee and controlling the way in which he or she works.
An employer will usually be liable for the discriminatory acts of its employees so long as those acts were conducted in the course of employment. The phrase ‘in the course of employment’ will certainly cover most acts taken in the workplace or in connection with the discharge of duties, but it can extend beyond this to acts which occur outside working hours and outside the workplace. It can also cover acts which are expressly forbidden by the employer in, for example, its handbook and/or rules of conduct. Acts which the employer has no knowledge of can also be caught by the provisions for vicarious liability.
Employers may also be liable for the discriminatory acts of third parties who are not its employees. In short, where the employer is the principal and the third party agent commits the unlawful act with the employer’s express or implied authority then the employer may be held liable.
An employer may defend liability by showing that it took such steps as were reasonably practicable to prevent the employee (who committed the act of discrimination) from committing the act in question or acts of that nature in the course of employment. The employer can rely on a number of factors to prove this including:
A complainant is entitled to pursue a claim of discrimination against an employer whom he or she considers to be vicariously liable for the acts of an employee as well as the individual employee(s).
A new regime of policing prohibited discriminatory practices has also grown up as a result of the Equality Act 2006. It is unlawful in many of the Acts to give instructions to another to commit an unlawful act of discrimination or to attempt to apply or to actually apply pressure, directly or indirectly, to another, in respect of whom the person applying pressure has authority, to commit such an act and to knowingly aid another to do any unlawful act.
Instructions can mean express instructions or, in a wider sense, an attempt to procure an act. It is worth considering all of these issues in cases involving an agency, agency worker and end user where the acts of discrimination committed by either the end user or the agency could result in liability for the other if there is any collaboration.
One of the most important issues for any adviser to consider is whether a complaint can be brought in time or whether it has been brought in time. If a claim is out of time then a Tribunal will not have jurisdiction to hear the complaint unless the complainant can invoke one of the specific ‘escape clauses’ in the legislation. However, whether or not a party raises the question of limitation, a Tribunal is entitled to consider this issue of its own motion and may, for example, order a pre-hearing review to determine whether a claim is in time without consulting either party. It is not open to the parties to agree a point of jurisdiction to bind the Tribunal.
In taking a history of the complaints made, an adviser should be careful to note the relevant dates of any acts or omissions complained of as well as looking to see whether any grievances have been raised. From a respondent’s perspective, any points to be taken in relation to time limits ought to be taken as early as possible before significant costs are incurred on either side.
Time limits broadly break down into two categories. In employment claims the time limit is normally three months with an escape clause which relates to whether it was reasonably practicable for the complaint to have been presented in time. In discrimination cases, however, the primary time limit is usually three months from the act complained of, or in the case of an act extending over a period of time (or a continuing act as it is often referred to) the end of that period.
In discrimination cases, the escape clause provisions where a claim has been presented outside the usual time limit ask whether it is “just and equitable” to allow the complaint to proceed out of time by effectively extending time. While this is a wide formulation, Tribunals will be astute to look for a good reason on the part of the complainant for the late presentation of the complaint and will examine the question of delay carefully with particular regard to any prejudice it may cause to the respondent. The late presentation of the complaint may be entirely or partly due to fault on the part of the legal advisers. There can be no question that Tribunals will look at this carefully, but whereas it used to be considered that so long as the fault was the adviser’s and the complainant could seek redress against the adviser there could be no extension of time, it is now the case that the question of adviser fault will be one of many considerations a Tribunal should take into account.
A further layer of complexity is added to the question of time limits by the operation of the provisions of the Employment Act 2002 and the Employment Act 2002 (Dispute Resolution) Regulations 2004 (quite apart from the other issues relating to jurisdiction where a grievance needs to be raised as a prerequisite of bringing a claim) which set out the requirements of the statutory grievance and disciplinary and dismissal procedures.
Regulation 15 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 provides for an automatic extension of time in certain circumstances.
The fact that a statutory questionnaire has been served or answered, or is in the process of being answered, lends no assistance on the question of time as there are no consequent automatic extensions of time. The only possible assistance such questionnaires may provide is in respect of the question of whether it is just and equitable to extend time.
If, for example, a respondent has provided a detailed response to the questionnaire then the fact that the complaint has been presented a short period out of time is unlikely to hamper its ability to address the complaints as it has already turned its mind to the relevant issues and, presumably, witnesses. However, this will always be a question of fact and degree for the Tribunal.