Generally, the Employment Tribunal hears employment discrimination claims (save for a few exceptions). These claims concern discrimination in relation to protected characteristics. These include (but are not limited to): age, disability, gender reassignment, marriage and civil partnership, race, religion and sex. A discrimination claim normally needs to be submitted to the Tribunal within three months from the date of the act to which the complaint relates. This is extended to six months for members of the Armed Forces.
Evidence of discrimination
At the outset of a discrimination claim the task ahead may seem daunting, particularly evidentially. How do you go about obtaining evidence to prove your case? Often, it may be that there is only a suspicion that there has been an incident of discrimination. However, it is possible to obtain information from the employer. Previously there had been a formal procedure to do this. However, the government withdrew this this as they considered it to be too great an administrative burden upon employers.
ACAS has provided a helpful guide for employees on what questions to ask, and for employers on how to answer those questions.
Broadly, the questions should set out:
- a background
- the employee’s details
- the basis on which they consider they may have been discriminated against
- a description of the discriminatory treatment, and
- why they consider the treatment to have been discriminatory.
The purpose of the questions is to try to obtain further information and evidence. In theory, the questions should also allow the parties to consider settlement of a prospective claim prior to the claimant commencing proceedings.
There is no sanction where an employer fails to reply to questions. However, the Tribunal may draw an inference where the employer fails to provide a response. A further important factor is that Tribunals will consider whether the employee had raised a grievance regarding the act of discrimination whilst the employee was in employment. Failure to raise a grievance at the time may result in a deduction in the award to the employee from the Tribunal.
Starting the claim
It is vitally important to have an ET1 (the Tribunal claim form) prepared by an expert in employment claims, particularly as discrimination is a complex area. Within the ET1, you will set out the background to the claim, along with the legal test and explanation of the breach. Furthermore, you will need to detail the expected remedy; this will include an expected award for injury to feelings. There is also the potential for an uplift if an employer has failed to deal with a grievance appropriately.
Once the Tribunal has received the ET1, it will be served upon the employer. The employer will then have a period of time to submit its ET3. Thereafter, the Tribunal will provide directions to the parties for the management of the claim ahead of the hearing.