Taking a sex discrimination case

Transsexual people: taking a claim forward

This page explains what to do if you want to pursue a claim for sex discrimination

Approaching your employer

If you are being discriminated against because of your sex, you have the right to take a claim to the employment tribunal. For most people, this is a last resort and you should first of all try to resolve things internally with your employer. If you do go on to take a claim, it will be in your interests to show you did everything possible to resolve the problem in the workplace. If you feel you are being discriminated against it is a good idea to keep a diary of events with dates and times of incidents and details of what happened. You could try raising the issue with your immediate line manager or if this is the person who is causing the problems, you could try the manager above them or your Human Resources department if you have one. If you have a union or staff association you should contact them for help.

Raising a grievance

If you are unable to resolve the problem informally and you decide to take things further, you should write a letter of grievance to your employer. 

Once you have sent the written grievance you should, wherever possible, comply with the rest of your employer’s grievance procedure before submitting your claim. Your employer should set up a meeting to discuss your grievance. You have the right to take a trade union representative or trusted colleague with you. If your grievance is not upheld, you have the right to appeal the decision and should exercise this right. You should send your grievance as soon as possible and bear in mind the overall time limits for taking a claim to the employment tribunal discussed below.

Before 6 April 2009, it was compulsory in most cases to use the statutory grievance procedure to try to resolve a workplace problem before making a claim at an employment tribunal. But on this date, new procedures for dealing with discipline, dismissal and grievance issues were introduced. The new system is more flexible, with increased emphasis on alternative dispute resolution mechanisms.

The Advisory Conciliation and Arbitration Service's (Acas) code of practice outlines the principles of what employer and employee should do to when trying to resolve workplace problems. Employers and employees are no longer required to follow mandatory steps in the grievance process, but employment tribunals do now have discretionary powers to adjust awards by up to 25% if employers or employees have failed to comply with the recommendations in the code.

For more information, or if you are unsure if the new system applies to you (for example, if the act of discrimination occurred before 6 April 2009), please read the booklet: Avoiding and resolving discipline and grievance issues at work (Pdf)or read the detailed guidance on the BERR website.

The Section 74 questionnaire procedure

If you are thinking of taking a claim, you could use a special questionnaire form (SD74) to gather more information about your complaint and ask your employer questions about the reasons for the treatment you received. The questionnaire can help you to decide whether to pursue your claim. It must be sent to the employer within 3 months after the date of the alleged discriminatory act or within 21 days after the date on which your complaint was received by the employment tribunal. The questionnaire can be downloaded from this website or you can order a hard copy from our helpline. For more information on how to use the questionnaire see using your rights.

Alternatives to tribunal

If you are unable to resolve your complaint with your employer but do not want to make a tribunal claim, you can, under certain circumstances, use the Acas pre-claim conciliation scheme. See Workplace Problem Solving for more information.
More details about Acas conciliation is available from Acas website.

Taking your sex discrimination claim to the employment tribunal

If you wish to make a complaint and you live in England or Wales, you must send your complaint on the official Employment Tribunal Application Form (ET1) to the employment tribunal nearest to your place of work. If you live in Scotland, you must send your ET1 to the Central Office of Employment Tribunals (COET). You can obtain an ET1 form from the Employment Tribunals Service. Alternatively, you can fill in and submit your application online on the Employment Tribunals website. More information on submitting a tribunal claim can be found in the using your rights section.

Time limits for your complaint

If you decide to take a claim, you must make your complaint to the employment tribunal within 3 months (less one working day) from the date of the discriminatory act. Complaints cannot be lodged on a Saturday, Sunday or public holiday, so you will need to count back to the nearest working day if your time limit expires on one of these days.

Do not delay in sending your claim even if you are off work through illness or you are waiting to see if your union or other body will represent you. If your grievance has not been resolved and the time limit is approaching, submit your ET1 to the employment tribunal. You could also send the tribunal a separate letter asking it not to list your case for hearing until you know the outcome of your grievance. Although the tribunal must in certain circumstances reduce your compensation if you file your complaint before the procedure is completed, it is more important to make sure that you file your claim in time.

What if I am outside the time limit for making my claim with the employment tribunal?

The tribunal may be prepared to extend the time limits if it is just and equitable to do so. They may extend the time limit if, for example, you were too ill to send a claim or were waiting for your employers to take some action. It is still worth making the claim and explaining fully in box 7 of the ET1 form (which asks for additional information) why you have delayed, but you should never count on this.

Some of the transgender case decisions which we have listed in this section concern examples where an exception has been made. Note that these were all exceptional because the law had changed in some material way that meant the applicant acquired the ability to complain for the first time. The same kind of time constraints apply in these circumstances, i.e. an application must be made as soon as soon as practicable, once it is reasonable to expect you to know that the law has changed.

What if the discrimination has been continuing over a period of time?

Sometimes ongoing discrimination is treated as a continuing course of conduct. In that case it will not matter if some of the incidents happened more than 3 months ago. But it is safest to put your claim in within 3 months of the first incident to make sure all the incidents fall within the time limit. Every incident is important in showing a pattern of behaviour so include all of them on the ET1.

What happens at the tribunal hearing?

An employment tribunal is less formal than a magistrate's court or county court in England and Wales, or a sheriff's court in Scotland, but like a court it has procedures and rules. There is a panel of three members. The person in charge, the chair, is the lawyer. One of the other two members is a representative of an employees' organisation, the other of an employers' organisation. Tribunals are open to the public so you can find out what happens by going to a hearing, but as most tribunal claims are about unfair dismissal, you may not see a sex discrimination case. You can contact the tribunal office to find out the dates on which sex discrimination cases are to be heard, but whatever a case involves, it is useful to get an early look at what a tribunal is like.

When you take a discrimination claim it is up to you to convince the tribunal that you have been discriminated against. The person you say discriminated against you will defend the claim and try to persuade the tribunal that you have not been discriminated against. Throughout the process you are known as the 'claimant' and your opponent as the 'respondent'. Together you are known as the 'parties' to a claim.

For further information, visit the Employment Tribunals Service website.

What will I get out of taking a claim?

The purpose of going to a tribunal is to get a decision on whether your employer has broken the law. If the tribunal decides in your favour it can:

  • declare that your employer has discriminated against you unlawfully
  • order your employer to compensate you for your losses, and/or
  • recommend that the employer take steps to reduce the effect of the discrimination on you.

You will find the process much easier if you decide what it is you hope to get out of taking a claim. Do you want an apology? A good reference? Justice? Financial compensation? Do you want to prevent the respondent from discriminating against other people?

Being clear what you want will help you to prepare your claim. It will also help you to decide whether or not to accept any offer of settlement, rather than going to the tribunal.

Compensation

The tribunal can order compensation for all or some of the following:

  • loss of wages to date
  • loss of future wages
  • injury to feelings

A tribunal can only award you compensation; it can make recommendations but it cannot order your reinstatement (unless you also take a successful unfair dismissal claim where reinstatement is sometimes available), nor can it order the employer to give you an agreed reference.

Settlements

You need to be clear about what you want to happen before you can decide whether to accept a settlement or to proceed to a tribunal hearing. It is important to secure your rights it may not be necessary to take your case all the way to a hearing at the tribunal. If a settlement makes an employer rethink attitudes and change practices you may feel you have made your point and be willing to settle without a tribunal hearing.

Here are some of the possibilities that you should consider:

  • receiving financial compensation
  • receiving an apology
  • being given an agreed reference
  • having your situation at work improved
  • getting your job back

What will it cost me to take a claim?

It is free of charge to lodge a claim with the employment tribunal and if you do not employ a lawyer to represent you, it should cost you very little. Most of your expenses (such as travel and loss of earnings) can be reclaimed from the tribunal.

Each party usually bears their own expenses in preparing for a hearing and the cost of any legal representative they employ so even if you lose you are unlikely to be asked to pay the costs of the respondent. The tribunal does however have the power to award costs against you if you act 'vexatiously, abusively, disruptively or otherwise unreasonably'.

The tribunal may also award costs against you where it believes that the bringing of the claim has been misconceived (i.e. that your claim had no reasonable prospect of success). You may be asked to pay a deposit at any stage in the proceedings if the tribunal decides that your claim has no reasonable prospect of success.

It is also possible for the tribunal to order the respondent to pay costs to you if they act vexatiously, abusively, disruptively or otherwise unreasonably in defending the claim.

For claimants with a genuine and legally arguable claim who conduct their case reasonably there is little risk of having to pay any costs. For further information and examples of where either party may be asked to pay costs see using your rights.

Can I avoid embarrassing publicity?

Tribunal hearings are usually open to the public including the press. A tribunal can, in certain limited circumstances make a restricted reporting order. This means that the media cannot publish your name or that of the respondents during the tribunal hearing. This order normally ends when the tribunal reaches its decision and details and all names are no longer confidential.

Note that most of the landmark cases involving transsexual people and employment have involved anonymity being successfully requested and granted. You can tell where this is the case because the claimant’s name in the case title is replaced by a letter (which need not have any connection with their actual name).

The Code of Practice

The former EOC published the Code of Practice on sex discrimination. The code gives guidance to employers, trade unions and employment agencies on measures which can be taken to achieve equality between women and men. A copy is available under Codes of Practice or from our helpline. Check whether what you are complaining about is covered by the code. If the respondent has breached the code, you should point this out to the tribunal.

The Department of Trade and Industry also issued specific guidance regarding the legal duties of employers in the light of the 1999 SDA regulations and the Gender Recognition Act 2004. The guide is still available from the Home Office website.

Trade union action

If you belong to a trade union you can ask for help either from a local union representative or by contacting a full time officer. If your union has official recognition then your employer will expect you to go to the union. Your union should be in a position to negotiate on your behalf. If you have any difficulties with your local union representative about your claim, contact the district or regional officer, who should be able to help. If you have any difficulty at district or local officer level, get in touch with your union's national equal opportunities officer via your union's head office. In some circumstances the union may arrange for a lawyer to represent you.

Some Unions have issued specific advice leaflets or policy briefings to support trans members and to ensure local officers understand how to support them.

This example is by UNISON: Bargaining for Transgender Workers’ Rights

Conciliation through Acas

Acas is an independent body with a statutory duty to try to settle cases about employment rights, and has a conciliation service.

Once you have lodged your claim with the employment tribunal, the tribunal will send a copy of your ET1 to Acas. Your claim is then allocated to a conciliation officer. This officer will contact you and the respondent and will offer to conciliate, or attempt to negotiate a settlement, between you.

If you and the respondent are willing to accept conciliation the officer will help you to try to reach a settlement without the need for a tribunal hearing. Conciliation is voluntary so both you and the respondent are free to decline or discontinue Acas assistance at any stage.

The conciliation officer has a duty to be impartial and independent and cannot act as a representative for either party.  ACAS staff receive training in transgender issues in order to ensure their impartiality is not at risk through any lack of understanding. The officer will explain the tribunal procedure, the relevant law, and the way tribunals have approached similar cases in the past.

The officer will also help you to establish the facts of your complaint and to clarify your views. The officer will explain your views to the respondent and the respondent's views to you.

It is not the officer's job to form an opinion on the merits of your case, nor to express their own views about it. It is not the officer's job to approve or even recommend a particular settlement. It is up to you and the respondent to sort out and agree the terms. It is therefore very important that you have a clear idea of what you will settle for and that you list separately all the items for which you are claiming compensation.

If you do agree a settlement the terms will be drawn up on a COT3 form. This is legally binding on both you and the respondent. If you do not want to accept a settlement, your case will go to the tribunal for a hearing.

How can the Commission help?

The Commission can:

  • tell you more about your rights under the Sex Discrimination Act (SDA) , particularly if you think you have grounds for a claim
  • advise you about the steps you can take to resolve your complaint on your own
  • advise you about taking a sex discrimination claim to the employment tribunal
  • in some cases, give legal or financial assistance

The Commission cannot give a legal ruling on a claim of sex discrimination; only the courts can do that.

Our Using your rights section gives guidance on:

  • completing your application to the tribunal
  • getting your evidence together
  • getting evidence from the respondent; and
  • the tribunal hearing itself and what happens after the hearing

For further information about taking a claim to the employment tribunal, contact the Employment Tribunals Service.

See Getting Advice for details of other organisations and sources of assistance:

Household insurance

If you have household insurance or a credit card, it is worth checking your policy to see if it includes legal protection insurance. If so, you may be eligible for legal advice and representation through your insurance policy. 

Last Updated: 09 Oct 2009