Discrimination
Discrimination is the unequal treatment of an individual or a number of individuals who are considered protected under the Equality Act 2010.
Discrimination at work cases are usually agreed through out of court settlements, rather than won at court because it can be very difficult to establish discrimination to the tribunal’s satisfaction, often because of lack of evidence.
Although it may be difficult to establish in a tribunal, it does not mean that discrimination in the work place does not exist.
A lot of employers will settle any potential claim long before it gets to a tribunal, but some will deny and even lie to avoid the uncomfortable truth that managers have engaged in such unlawful discriminatory conduct.
Although discrimination claims are difficult to prove due to lack of evidence, you may be able to prove that you have been disadvantaged because of that discrimination, in which case you may be able to negotiate a settlement agreement, or make a claim through the employment tribunal.
If you want an idea as to how much you should get, try our calculator here.
Discrimination in the workplace can be very difficult for employees and we offer a range of funding options. In some cases, we can offer a ‘no win no fee’ arrangement to you.
We can also offer a range of funding options for assistance on various aspects of a claim for discrimination and we will be happy to discuss all options with you.
Contents:
Who can make a claim for discrimination?
Types of discrimination
Time limits in discrimination at work claims?
Discrimination settlements
Negotiating a discrimination settlement agreement
Can I make a discrimination claim while I am still in employment?
Discrimination claims have the potential of damaging an employer’s reputation
If negotiations come to a standstill
What should I do next?
Who can make a claim for discrimination?
Under the terms of Equality Act 2010, an individual can be protected from discrimination if it can be proven that the act to which they were subjected was because of one or more of their ‘protected characteristics’, as follows:
- Age – a person of a particular age or belonging to a particular age group.
- Disability – a person classed as suffering a disability by way of a physical or mental impairment which has a substantial and long term adverse effect of that person’s ability to carry out normal day to day activities.
- Gender reassignment – a person who is transitioning or has transitioned from one gender to another.
- Sexual orientation – whether a person is sexually attracted to their own sex, the opposite sex to to both sexes.
- Sex – a man or woman.
- Marriage and Civil partnership – the legal union of a man and woman or between a same sex couple.
- Pregnancy or maternity – being pregnant and then maternity being the period following the birth of the baby and is linked to maternity leave.
- Race – a person’s race, nationality, colour, and ethnic or national origins.
- Religious beliefs – a person’s religious or philosophical beliefs or lack of such beliefs (such as atheism). Generally, a belief is interpreted as a mindset which affects an individual’s life choices or the way they choose to live their day to day lives.
Types of discrimination
Discrimination can take a number of forms and the two broadest categories are Direct discrimination and Indirect discrimination. Harassment and Victimisation are also counted as discrimination.
- Direct Discrimination
Direct discrimination is easy to recognise and it occurs when you have been treated less favourably than others because of one of the protected characteristics you may hold.
Not all unfair treatment is unlawful discrimination under the Equality Act 2010, therefore in order to prove discrimination; you must be able to show that it is because of a protected characteristic. This is difficult because few people discriminate so explicitly.
In rare cases where an employer’s behaviour amounts to direct discrimination, it may be difficult to get to the truth without going through the long process off grievances and potentially a tribunal hearing before the discriminatory conduct is uncovered. Once direct discrimination is established, an employer cannot provide a defence to this conduct.
- Indirect discrimination
This is when an employer applies a policy, condition or requirement across the board, but puts you or a group of people at a disadvantage because of the protected characteristics you may hold.
An employer may have a defence if they can objectively justify the requirement and that the discrimination is a proportionate way of achieving a legitimate aim, such as for genuine health and safety reasons.
Therefore in order to utilise the defence, the employer would need to show that there is no reasonable alternative by providing evidence that they have considered the needs of the business, the discriminatory effect of the requirement and any alternatives that may achieve the same result without putting you or other individuals at a disadvantage.
- Harassment
This is when an individual is subjected to unwanted conduct (whether this be verbal or physical) because of their protected characteristic, which has the purpose or effect of violating their dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.
A harassment claim can be brought against the individual who conducted that behaviour and their employer or the organisation because the employer can be held responsible for the discriminatory acts of their employees, which took place during the course of the employment or association. Such claims cannot be brought against an individual alone in an employment tribunal.
An employer or organisation does not have to have known about the conduct of the individual harasser and will only have a defence if they can show that they have taken all reasonable steps to prevent and stop discrimination from taking place.
- Victimisation
This is when you are treated badly because you have made a ‘protected act’ or it is believed that you have done, or are going to do a protected act.
A protected act is reporting or alleging discrimination, bringing a claim for discrimination, or offering assistance to someone else in their discrimination claim.
Essentially, victimisation is retaliation by your employer for complaining about discrimination.
It is also worth noting that an individual does not necessarily have to have made a protected act, if it can be proven that they have been subjected to a detriment because they are believed to have done so.
Time limits in discrimination at work claims
You will be pleased to know that unlike unfair dismissal claims, you do not have to wait two years of continuous employment before you have the right to bring a claim. Therefore, there is no requirement of a minimum period of employment before you can make a claim in the employment tribunal for discrimination. This is because your rights not to be subjected to less favourable treatment start from the first day of your employment, or even before employment if you were denied an interview due to a protected characteristic.
Once you decide to make a claim for discrimination, you have three months from the date of the discriminatory treatment, or course of events to commence a claim in the employment tribunal, unless you can show it was reasonable in the circumstances to wait. You do this by notifying ACAS through the Early Notification Form.
If you miss the time limit, the tribunal may reject your claim, unless they decide that it is just and equitable to accept it. Therefore, you will need a very good reason for waiting more than three months to issue a claim.
Your employer will be less likely to offer you a decent settlement agreement if you have missed the deadline. Also, you should also be aware of your employer’s intentions, as it is not uncommon for employers to drag out grievance procedures to take individuals over the three month time limit to issue their claim.
Discrimination settlements
In order to get an idea as to how much you should be looking to settle your discrimination claim for, you should consider how the claim would be dealt with in a tribunal. Most employers will ask this question to their own lawyers and then base any settlement offers on their answer.
Tribunal claims have three elements:
- Financial losses are based on the same principles as for unfair dismissal, but they are not capped at £84,444 (September 2019). Therefore financial losses for discrimination are unlimited and based on the amount of money you lost whilst out of work. If on the other hand you got a job straight away on the same money, then you will have suffered no financial loss.
- Injury to feelings is always paid in successful discrimination claims and the guidelines for the amounts payable as set in April 2019, are currently as follows:
- Band 1: £900 – £8,800 for a one off or isolated incident and is the most common award.
- Band 2: £8,800 – £26,300 for more serious discrimination.
- Band 3: £26,300 – £44,000 for a sustained campaign of the most serious discrimination and is very rare.
- Personal Injury compensation depends on the type of injury caused, it is very difficult to prove and there is no guarantee that you will be awarded for this. It is based on the same principles as for a car accident, but rather than physical injuries, the most common to discrimination employment matters are psychological injuries, such as depression, anxiety and other similar disorders. If you’re claiming personal injury, then medical evidence is necessary where you will have to show with a medical experts supporting opinion that your employers conduct was the only and direct cause of your condition and that they should have known that their actions could lead you to injury.
Negotiating a discrimination settlement agreement
Being discriminated against by being treated less favourably or harassed because of a protected characteristic is one of the most serious claims to be made at a tribunal. Therefore it is very important for you to have got all the facts and allegations exactly right.
The first thing is that you need to know what you are claiming and why and how to prove it. Sometimes this will not be apparent; therefore you will need to find out more from your employer.
Because discrimination claims are so sensitive, not only to the individual, but to the employer also, any negotiations must be conducted very carefully in order for there to be a chance of success.
The first step is the questions procedure, (previously known as discrimination questionnaires) under the Equality Act 2010. This is a formal statutory procedure that you can use to ask questions about your employer and they must answer, otherwise adverse inferences may be drawn by a judge should the matter proceed to a hearing. An adverse inference means that a judge will be entitled to find that an employer has been, or is up to no good. Details of the questions procedure, including a questions template can be downloaded from the ACAS website.
Commencing the questions procedure is a good negotiating tactic, as your employers will have your questions and will know that you are serious about making a claim. It is advisable to start the questions procedure and then follow up with without prejudice negotiations; this allows your employer not to investigate the questions, thus keeping the issues confidential.
Alternatively, you could wait tactically for the answers, as this may put you in a stronger position as you can use the answers, or the lack of answers as the basis of writing your without prejudice letter.
Remember not to make allegations without the correct facts and supporting evidence.
Can I make a discrimination claim while I am still in employment?
The answer is yes. This is also a good negotiation tactic, putting pressure on your employer to make an offer to settle. Their first instinct will be to get rid of that employee, but this is not possible without victimising them and thus increasing the likelihood of them having to pay compensation.
Therefore, this is the perfect time to send a without prejudice letter, offering settlement and termination with a good settlement agreement.
Discrimination claims have the potential of damaging an employer’s reputation
Being accused of and being found guilty of discrimination is very worrying for an employer, as not only can it damage their reputation, but it can also damage their business. There is the possibility of further claims too.
Therefore, it is important to use facts, evidence and decent knowledge of discrimination. If you can show your employer in correspondence that you have a case with prospects of success if heard in an employment tribunal, then they will probably want to settle the case.
Take a look at our evidence section as a guide to collecting and using evidence for your claim.
If negotiations come to a standstill
Should negotiations breakdown, the next step would be to submit a grievance, a subject access request and/or a questions procedure if not already done so.
If all of those have failed to secure the desired outcome for you, then now is a good time to instruct a solicitor to issue a claim at the employment tribunal or commence ACAS pre – claim conciliation. This will show your employer that you are serious and will often lead to an improved offer.
What should I do next?
If you would like legal advice regarding any form discrimination that you feel that you have been subjected to because of a protected characteristic, as discussed above, then please complete the enquiry form or call us on XXXXX and we can help you to identify the claims that you may have, advise on time limits and your employers liability and discuss your options and/or settlement options.
We offer a range of funding options to assist you. In some cases, we can offer a ‘no win no fee’ arrangement to you.