This is a brief explanation of the types of issues that you should identify and analyse before you submit a claim of unlawful discrimination to the Employment Tribunal. If you run through all these steps it will help you identify strengths and weaknesses in your claim, critically analyse what evidence what evidence you need, and come to a reasonable conclusion about the strength and value of your claim (among other things). However, this isn’t a comprehensive analysis of all the steps required to prepare for a claim for unlawful discrimination in the Employment Tribunal. You may wish to (and you are indeed recommended to) seek advice from expert employment lawyers before submitting your ET1
- Identify your protected characteristic(s)
- Identify the type(s) of discrimination
- Identify the prohibited action(s)
- Identify what evidence you’ll need to win
- Identify any other explanations for the treatment you’ve been subjected to
- Objectively analyse the strength of your claim
- Work out potential compensation
- Try and settle before the Employment Tribunal
- Sue the right person
- Get the forms together and fill them out correctly
- Submit your claim on time
There are 9 protected characteristics:
- Age (age discrimination)
- Disability (disability discrimination)
- Race (race discrimination)
- Sex (sex discrimination)
- Sexual orientation (sexual orientation discrimination)
- Marriage & civil partnership (marriage & civil partnership discrimination)
- Gender reassignment (gender reassignment discrimination)
- Religion or philosophical belief (religion or philosophical belief discrimination)
- Pregnancy or maternity (pregnancy or maternity discrimination)
It is possible to use multiple characteristics for your claim (i.e. black and a woman). However if you wish to make a “multiple discrimination” claim (n.b. there are a number of types of ‘multiple discrimination’) then it’s best to do it as both combined and in the alternative. For example:
Combined: “I believe this treatment constituted direct combined race and sex discrimination”
In the alternative: “Further, or in the alternative, this treatment constituted direct race discrimination. Further, or in the alternative, this treatment constituted direct sex discrimination”.
It’s important to correctly identify what your protected characteristics are prior to the issue of your ET1 form. It is often fairly obvious what the relevant protected characteristics are but there are some circumstances in which it may not be so simple. If you get this wrong then it can cause problems further down the line.
There are 8 possible types of discrimination that can be pleaded, although the ability to plead a number of these depends upon the protected characteristic that you are utilising:
- Direct discrimination
- Indirect discrimination
- Failure to make reasonable adjustments
- Discrimination arising from disability
- Pregnancy & maternity discrimination
- Gender reassignment: absence from work
- Harassment (including sexual harassment)
Again, it’s important to correctly select which type of discrimination you’re relying on in your complaint to the Employment Tribunal. A failure to plead the correct type of discrimination in your ET1 claim form isn’t necessarily terminal to you claim as long as you plead all of the necessary facts in your claim form. If you’ve done so then seeking to include another type of discrimination at a later date would simply be applying another “label” to the discrimination complained of. As will be explored below it’s therefore extremely important that you make sure you include as much detail as possible in your ET1.
Further, if you believe that a particular action against you (i.e. dismissal) potentially constitutes both harassment and direct discrimination, you must select one of the two. You cannot plead them in the alternative. Similarly, you can’t plead a potentially discriminatory act (i.e. dismissal because you stated you were to take maternity leave) as both direct discrimination under s.13 of the Equality Act 2010 and pregnancy and maternity discrimination under s.18 of the Equality Act 2010.
There is a wide definition of “prohibited action” in the Equality Act 2010. It covers potentially discriminatory actions against you at almost all stages of the employment process, including recruitment, the employment itself, promotion and/or dismissal. Your employer should not discriminate against you on the contract terms which you’re offered, on whether you’re offered employment, or on the basis to which you’re offered opportunities for promotion, training, benefits, transfer or any other benefits, facilities or services. Further, your employer should not subject you to any other “detriment” (i.e. pretty much any action which places you at a disadvantage).
Job applicants, employees, former employees, persons personally providing services, and contract workers can complain of unlawful discrimination in the Employment Tribunal.
What evidence you will need will very much depend on what type of discrimination you’re pleading before the Employment Tribunal. However, you should write down everything that’s happened to you as soon as possible to preserve your memory of events. You should also start making a diary of what’s happened to you. This will form the basis of your witness statement at a later date. Further, you should identify other persons that may potentially be willing to give evidence in your favour at the Employment Tribunal. However, don’t use a “scatter gun” approach to witnesses – only use those witnesses who will be able to put forward evidence to prove specific facts relating to relevant legal matters in your case.
Other types of evidence that are normally useful are any form of “documentary” evidence – contractual documents, written correspondence, tape recordings, minutes of meetings, staff handbooks, even databases. If you don’t have copies of anything that you think is relevant then write to your employer and ask for a copy. If your employer fails to give you a copy of these documents then (if necessary) you can apply to the Employment Tribunal for an order for specific disclosure at a later date.
If your claim relates to indirect discrimination you should think carefully about whether statistical evidence will be necessary and, if so, where you can gather the necessary statistics from.
If your claim relates to any form of disability discrimination then you will normally have to prove that you are in fact disabled, unless your employer accepts that fact. You should therefore seek to obtain a letter from your GP or medical consultant to demonstrate your disability. You should also gather together your medical notes from your GP, your hospital, your physiotherapist, or your medical consultant (as relevant). It may be necessary in extreme circumstances to instruct a medical expert to prepare a report stating that you’re disabled. However, this is a potentially expensive process.
Something that you should think very carefully about before embarking on your journey through the Employment Tribunal is whether in fact the action that’s been taken against you is discriminatory or is because of some other non-discriminatory reason. Was your dismissal, for example, because of the fact that you’re disabled or for some other reason (i.e. you’re underperforming or there’s a personality clash at work or it’s a genuine redundancy situation etc.)?
It cannot be stressed enough that it’s important to be objective about this. Feelings often run at boiling point in discrimination claim and Claimants often have good reason to believe that they’ve been discriminated against, even if they have not. It’s therefore important to gather evidence relating to your employer’s intention in dismissing you.
This involves a consideration of two elements:
- How sound, legally, is your claim?
- Do you think that you can prove the particular facts in your claim? (I.e. How much evidence do you possess or think you can obtain? How strong is this evidence? etc.)
Try and make an objective, reasonable judgment of the strength of your claim. Talk about it frankly with unbiased friends or family members and get their point of view on what’s happened to you. Do they think that the actions taken against you were discriminatory or for some other reason? Doing this can help you identify strengths and weaknesses in your claim.
Further, speak to a specialist employment lawyer to get their view on your claim. Such solicitors often undertake free risk assessments and no win no fee agreements. If they’re willing to take your claim on then it normally means that they think you’ve got more than a 50% chance of succeeding with your claim. Doing so can also help to clarify the basis of your claim and whether you’ve missed anything out. Employment law can be quite complicated – there’s no shame in getting some help.
Working out potential compensation at an early stage can be helpful for at least 4 reasons:
- Settling the claim before the Employment Tribunal – you should normally seek to try and engage with your employer to settle your potential claim before the Employment Tribunal. This can avoid a lot of hassle and potentially minimise “fall-out” with your employer. It’s therefore important to construct an accurate and reasonable schedule of your losses prior to the Employment Tribunal.
- Getting the Schedule of Loss ready – you will need to comply with the Case Management Order of the Employment Tribunal, which normally includes a requirement for you to file a Schedule of Loss 3 or 4 weeks after the Response from your employer has been received. It’s important to have an idea about what you’re claiming so that you can prepare this document in time.
- Being objective and reasonable about the value of your claim – there’s one straightforward rule to this: your claim is almost never worth as much as you think it is. If you have inflated expectation as to the value of any award you destined to be disappointed and, potentially, unreasonable in the processing of the claim. This may have costs implications.
- Demonstrating you know what you’re talking about – this seems obvious but is important. You’ll want to demonstrate to the solicitors on the other side that you’re not to be trifled with. Do your research.
Related to the above point, you should write to your employer (or former / potential employer) before the Employment Tribunal and explain that you’re considering making a complaint for unlawful discrimination to the Employment Tribunal. This serves a number of purposes:
- Potential settlement – if you can settle your claim before the Employment Tribunal then a lot of hassle and, potentially, cost can be avoided.
- Notification of the claim – if your employer later ignores your correspondence and you get a default judgment then you can prove that your employer was aware of the potential litigation. Make sure that you communicate to your employer the fact that you’ve made a complaint to the Employment Tribunal once you’ve submitted your ET1
- Obtaining of documents – you can ask your employer to provide you with potentially important documents that you don’t possess i.e. CCTV, your contract of employment, minutes of meetings etc.
Again, this may seem obvious but the importance cannot be underestimated. If you’re making a complaint for unlawful workplace discrimination to the Employment Tribunal then you’ll want to include both the person(s) who discriminated against you (i.e. your manager) and your employer (i.e. Joe Bloggs Ltd) as Respondents. Failure to do so can cause you problems, especially if either one of these Respondents is impecunious – success would generally be a pyrrhic victory.
You’ll need to have obtained and filled out your ET1 claim form. You may wish to use a Particulars of Claim as well as the ET1, although this isn’t strictly necessary. Make sure that you fill out your ET1 (or Particulars of Claim) with as much information as possible before submitting your claim. This is useful for at least two reasons:
- The Employment Tribunal will often have only enough time to read your ET1 (or Particulars of Claim) before the Hearing
- You may wish to plead alternative types of discrimination / prohibited actions / protected characteristics at a later date. Having all the facts down in your ET1 will mean that you’re simply putting a different legal “label” on existing facts
Further, you should complete your witness statement as soon as possible. Memories fade and your memory is one of the most important pieces of evidence in the Employment Tribunal. Try and get other potential witnesses to write down their statements prior to your submitting your complaint.
Unless the complaint of is one of continuing unlawful discrimination (which won’t be covered in this article) you generally have three months less one day from the date of the discriminatory action to submit your complaint to the Employment Tribunal. Submit your claim by email instead of by post – you’ll get an almost immediate acknowledgment receipt and avoids the problem of Royal Mail’s inefficiencies. Also look to submit (if possible) your claim at least one or two weeks before the relevant limitation date – it’ll reduce your stress.
If there are multiple (potentially overlapping) incidents of discrimination then make sure you submit your claim before the first limitation date. If that’s not possible then you can use the other incidents of discrimination as supporting evidence for the complaints of discrimination that are in time.
Redmans Solicitors are London employment lawyers and offer employment law advice to employees and employers. They are specialist unfair dismissal no win no fee solicitors and off Employment Tribunal no win no fee representation