8. Taking a tribunal claim

A person who has been unlawfully discriminated against by their employer or ex-employer has the right to take a claim to an employment tribunal. In some cases claims are taken to the county court or sheriff court (in Scotland), but in general it is tribunals that hear the vast bulk of discrimination claims.

Lodging a tribunal claim is a relatively easy procedure that involves completing an ET1 form and submitting it to the tribunal office (see www.employmenttribunals.gov.uk for further information). However, it is important that members consult with their union before submitting a claim, as getting the details wrong can affect rights to take a claim.

Equally, if you are a union representative assisting a member to prepare a claim, it is advisable to check that you have done everything right. As this booklet has demonstrated, discrimination law can be complicated and it is easy to get things wrong.

Multiple types of discrimination can be claimed simultaneously — for example, both direct or indirect discrimination. If the claim involves both religion and race, you should claim under both section 10 and section 9 of the Equality Act 2010.

Restricted reporting orders

In cases where the facts revealed at the tribunal would be particularly distressing (for example, in harassment cases) the tribunals can impose a “restricted reporting order” which means that the names of the parties should not be reported. In general, the order remains in force until after the tribunal process has been completed.

The tribunal might also impose a restricted reporting order in transgender cases. In the case of Chief Constable of West Yorkshire Police v A [2000] IRLR 465, the EAT ruled that individuals pursuing transgender discrimination claims should have the right to have their identity protected, otherwise they might be reluctant to bring claims.

Time limits

The most important thing to note is that a tribunal application has to be lodged with the tribunal within three months of the date of the discrimination complained of. Missing this deadline means that you may find that the tribunal refuses to hear the claim. Although there are some circumstances where the tribunal may exceptionally extend the time limit, where it considers it “just and equitable” to do so, it is always safer to submit the claim in time.

Where the discrimination is ongoing (continuing) it may be possible, depending on the facts, to lodge a claim any time while in work or within three months of leaving.

Remedies

If you win a discrimination claim the tribunal will make one or more of the following:

• an order declaring your rights;

• an order requiring your employer to pay compensation; and/or

• a recommendation that your employer takes action, within a specified period, to remove or reduce the discrimination you have suffered.

Under section 124 of the Equality Act 2010, tribunals can also now make recommendations not just in relation to the claimant, but for any other person too. While the employer cannot be forced to observe a recommendation, failure to act on it will be taken into account in subsequent cases.

In discrimination cases there is no maximum amount of compensation the tribunal can award. And compensation can be awarded even if there was no intention to discriminate. However, this does not mean that everyone gets very large amounts in compensation. Because it is mostly related to your actual financial loss, the amounts awarded can sometimes be relatively small.

There are different kinds of claims that you can make and it is important to ensure that all are submitted. These are:

• claims for actual financial loss of earnings and any other sums lost as a result of the employer’s discriminatory acts;

• injury to feelings damages — these are said to represent the hurt that you experienced from having been discriminated against; and

• aggravated damages — these can take into account the manner of your dismissal.

Following the decision in Chief Constable of West Yorkshire Police v Vento (No 2) CA 2002 EWCA Civ 1871 (as updated by Da’Bell v National Society for Prevention of Cruelty to Children UKEAT/0227/09), damages for injury to feelings fall into three bands. In the most serious of cases, such as where there has been a lengthy campaign of discriminatory harassment, damages are likely to be between £18,000 and £30,000.

For cases of mid-level seriousness (i.e. serious cases which do not warrant an award in the top category) damages are likely to be between £6,000 and £18,000. For less serious cases (such as where the act of discrimination is an isolated, or one-off occurrence) damages are likely to be between £600 and £6,000.

Also, aggravated damages can be awarded if the defendant has behaved in a high-handed, malicious, insulting or oppressive matter: Alexander v Home Office CA 1988 ICR 685.