Discrimination cases at the Employment Tribunal

This page explains:

• where claims are brought
• time limits for bringing a claim
• the standard and burden of proof
• what the Employment Tribunal can order an employer 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
• 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

If you are a member of the armed services, you can only bring your complaint to the Employment Tribunal after your service complaint has been decided.

You must bring your 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
• for cases involving the armed forces, the time limit is six months (less one day)

If you bring your claim after the date has passed, it is up to the Employment Tribunal to decide whether it is fair to everyone concerned, including both you and your employer, to allow your claim to be brought later than this.

Do not assume they will allow you to bring a late claim. They may not, in which case, you will have lost any chance to get the situation put right by the Employment Tribunal.

When a claim concerns something that was not a one-off incident, but which has happened over a period of time, the time limit starts when the period has ended.

If you are complaining about a failure to do something, for example, a failure to make reasonable adjustments, then the three months begins when your employer made a decision was made not to do it.

If there is no solid evidence of when they made 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
• at the end of the time when they might reasonably have been expected to do the thing

 An Employment 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 you are claiming unlawful discrimination, harassment or victimisation against your employer, then the burden of proof begins with you. You must prove enough facts from which the tribunal can decide, without any other explanation, that the discrimination, harassment or victimisation has taken place.

Once you have done this, then, the burden shifts onto your employer to show that they or someone for whose actions or omissions they were responsible did not discriminate against, harass or victimise you.

If an employee wins a case against their employer, the Tribunal can order what is called a  'remedy'.

The main remedies available to the Employment Tribunal are to:

• make a declaration that the employer has discriminated
• award compensation to be paid for the financial loss the employee has suffered (for example, loss of earnings), and damages for injury to your feelings
• 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 (for example: providing a reference or reinstating you to your job, if the tribunal thinks this would work despite the previous history)

The Employment Tribunal can also make a recommendation requiring an 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 employee has already left that employer so any individual recommendation would be pointless. For example:

• 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
• making public the selection criteria used for transfer or promotion of staff

If an employer does not do what they have been told to do in a recommendation, the tribunal may order them to pay  compensation, or an increased amount of compensation, instead.

In cases of indirect discrimination, if the employer can prove that they did not intend what they did to be discriminatory, the tribunal must consider all of the remedies before looking at damages.

The tribunal can also order an employer to pay your 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 your best interest to try to settle your dispute i.e. reach an agreement with your employee 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 you can settle a dispute:

• agreement between the employer and employee
• Acas conciliation service
• qualifying compromise agreement

Agreement between employer and employee

Before the employee issues a claim in the employment tribunal, you can agree to settle a dispute directly. An agreement to settle a dispute can include any terms that you agree with the employee and can cover compensation, future actions and other lawful matters.

Acas

You may also seek assistance from Acas which offers a conciliation service for parties in dispute, whether or not you have already made a claim to an employment tribunal.

Qualifying compromise agreement

A 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 you must satisfy if you choose to settle your claim in this way:

• the agreement must be in writing
• the conditions in the agreement must be tailored to the circumstances of the claim
• you 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 you 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

If you are represented by a legal advisor in relation to a claim and you subsequently settle it through a compromise agreement, the same advisor can also advise you on the compromise agreement.