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Employment: Resolving disputes

This page deals with seeking to resolve an employment dispute, either without going to court or by taking a claim to an Employment Tribunal. For more resources, there is a Helpful links section.

Fees for bringing an Employment Tribunal claim took effect on 29th July, 2013. See Fees for tribunal claims.

On separate pages:

Summary

Advice

You can contact the Equality Advisory and Support Service (EASS), www.equalityadvisoryservice.com, which has replaced the Equality and Human Rights Commission helpline, or the ACAS helpline www.acas.org.uk.

You can approach a citizens advice bureau, Law Centre, trade union, or solicitor. Advice can be useful in helping to argue a case. See below Getting advice.

Trying to resolve a dispute

You might talk to the employer informally at first. If that is not successful, an existing employee might consider grievance or internal appeals procedures. Legal rules encourage the use of internal procedures before going to a tribuanal. See below Talking to the employer.

ACAS can be brought in to conciliate. This can happen before a claim is made to an Employment Tribunal, as well as after. See below ACAS - conciliation.

The questions procedure enables an actual or potential claimant to ask relevant questions of the employer. This is being repealed as regards discrimination which happened or on after 6th April 2014, but even after that asking questions may still be useful.

To be binding a settlement agreement must meet certain conditions, unless made with the assistance of an ACAS conciliation officer. In particular, the employee must have received independent legal advice.

Tribunal claim

If you want to take the matter to court, the complaint will go to an employment tribunal (Going to the tribunal). See also Helpful links below for resources on this. Some points to consider:

Remedies

The main remedy available from a tribunal is compensation. This can include loss of earnings and injury to feelings. Compensation for injury to feelings is determined according to three 'Vento bands' ranging from about £500 to £30,000.

Bear in mind though that in practice over half of claimants who win a case are unable to recover the full amount of compensation from the employer (over a third recover none of it). Claimants who win a case may have a similar problem getting repayment of tribunal fees from the employer. However, many claims are settled without going to the tribunal and recovery rates then are likely much higher See Enforcement: will I actually receive the compensation?

A tribunal can also make recommendations.

See Remedies (separate page).

Helpful links

Options before going to a tribunal

Helplines

Remember you can contact the Equality Advisory and Support Service (EASS), www.equalityadvisoryservice.com, or the ACAS helpline www.acas.org.uk.

(Also, in a relatively small number of cases the Equality and Human Rights Commission may actually assist in bringing legal proceedings - see EHRC section).

Talking to the employer

At least if you are employed, the appropriate course will normally be to take up the complaint direct with the employer, perhaps informally at first, and if that is not successful then through their grievance or internal appeals procedure.

Approaching a person in the personnel department may sometimes be easier than approaching your manager. There may even be an equal rights officer.

From the Employment Code, para 17.92:
An employer has a procedure that allows a grievance relating to harassment to be raised with a designated experienced manager. This avoids the possibility of an allegation of harassment having to be raised with a line manager who may be the perpetrator of the harassment.

The employer's occupational health adviser may also be able to help. OH practitioners are doctors or nurses, and have a duty of confidentiality.

Save in very exceptional circumstances, they need the employee's consent before disclosing information to managers or Human Resources.

Legal rules encourage employees to use any internal grievance procedure before going to an employment tribunal. Compensation can be adjusted down or up if the employee or employer unreasonably fails to comply with an ACAS Code of Practice - see Grievance and disciplinary procedures: ACAS Code.

In many cases the worker has a legal right to have someone accompany him or her to grievance or disciplinary meetings. In any event, adjustments should be made to enable someone who stammers to have their say. See Examples of reasonable adjusments: Disciplinary and grievance procedures.

For more, see above Helpful links.

ACAS - conciliation

You can approach ACAS (www.acas.org.uk) to help try and reach an agreement. ACAS can often offer free, impartial conciliation - either before or after an employment tribunal application is made.

From 6th May 2014 (with a transitional period from 6th April) it will actually be a legal requirement normally to notify ACAS of a claim before taking it to an employment tribunal. See All claims will go first to ACAS.

The Northern Ireland equivalent of ACAS is the Labour Relations Agency - www.lra.org.uk.

Getting advice

To help in taking a grievance, or especially in making a claim to an employment tribunal (if need be), you may wish to approach a relevant organisation such as a trade union (they often give free advice on employment issues) a staff association, or the Citizens Advice Bureau / Law Centre, or get other legal advice. See my web page on Sources of Help and Advice.

The law can be complicated. Also advisers can help sort out what facts and arguments are most important, and help put over points more strongly. So it is often a good idea to get advice if you can. As well as helping your own case, legal representation in tribunals - or at least legal help in preparing your case - may also help establish favourable precedents for people who stammer more generally.

The questions procedure

The questions procedure (Proving discrimination: Questions procedure) enables an actual or potential claimant to ask relevant questions of the employer. The procedure can be used even before any tribunal proceedings have been started.

Going to the tribunal

If you wish to take the matter to court, an employment-related complaint goes to the employment tribunal. A tribunal can award compensation, and can also make recommendations. See Remedies (separate page).

I am not going to try and tell anyone how to run an employment tribunal case (I have no experience of it) but I can make a few points. For more guidance, see above Helpful links.

Fees

Fees are now payable to bring a Tribunal claim, unless you are entitled to 'remission', See Fees for tribunal claims.

ACAS involvement

A copy of the complaint will go to ACAS (above), who will normally intervene to see if a settlement is possible. Remember generally that cases are very often settled before the main hearing.

Though not compulsory till 6th May 2014, from 6th April there is a new procedure for notifying claims to ACAS before being taken to an employment tribunal. See All claims will go first to ACAS.

Employment Tribunal website and Enquiry Line

There is Employment Tribunal guidance at www.justice.gov.uk/tribunals/employment (see links on left of that webpage), and there is an Enquiry Line on 0845 795 9775.

(For Northern Ireland - though I don't generally deal with it here - the website of the Office of Industrial Tribunals and Fair Employment Tribunal is www.employmenttribunalsni.co.uk.)

Grievance and disciplinary procedures

If employees or employers unreasonably fail to follow the ACAS Code of Practice on this, they may be penalised through compensation being decreased or increased. See Grievance and disciplinary procedures: ACAS Code.

Time limit for applications

You need to make the application to the tribunal within three months (less one day), unless the tribunal agrees to allow a late claim (EqA s.123(2)). Broadly, the time runs from when the alleged discrimination was committed, and not from the time where any internal appeal or grievance procedure is concluded.

Where there is a continuing act, the three months starts at the end of the act (EqA s.123(3(a)). It is a question on the facts whether there is an act extending over a period, or a succession of unconnected or isolated specific acts. The distinction has been considered in various cases - see for example Hendricks v Commissioner of Police for the Metropolis (link to eortrial.co.uk). A finding that something is a continuing act may substantially increase compensation, since discrimination going back well before the 3 month time limit may be included as part of the continuing act.

Particularly beware the time limits where there is a (continuing) failure to make a reasonable adjustment. There are special rules on when a 'failure' is seen as happening. Delaying a claim in the hope that the employer will eventually make the adjustment may mean the claim is out of time. See Reasonable adjustment rules: time limits.

Tribunals have a discretionary power to extend the time limit beyond 3 months (EqA s.123(2)). The tribunal should consider whether an extension is 'just and equitable' - for more on this see Employment tribunal applications,out of time (link to pcs.org.uk). It has been said that a tribunal's power to extend time need not be used sparingly - a tribunal should not proceed on the basis that an extension will be refused in all but exceptional circumstances (Malcolm v Dundee City Council (link to bailii.org), 2012).

Who to claim against

Where there has been unlawful discrimination or harassment, the employer will very often be liable. But it may make sense also to claim against the individual involved who may be liable, or against others who may be liable - for example as someone who gave instructions to discriminate. See Who is liable under the Equality Act.

Burden of proof

On burden of proof, including a rule which may shift the burden of proof over to the employer, see Proving discrimination: Burden of proof.

The questions procedure

This procedure can be very useful. It is designed to help a claimant decide whether to make a complaint and how to formulate and present a case most effectively. See Proving discrimination: Questions procedure. The formal procedure is being abolished as regards discrimination which happens on or after 6th April 2014, but claimants may still ask questions.

Seeing relevant documents

Once proceedings are instituted, the claimant can seek discovery and inspection of relevant documents (unless privileged), e.g. notes of interviews, and the employer's internal and external emails. Employer's witness statements will also be disclosed.

The claimant has an interest in seeing as much information as possible before the hearing fee becomes payable, so as to decide whether the case is strong enough to take it to a hearing. The High Court has recognised this:

We would expect a full exchange of information to be encouraged by the Tribunal before the hearing fee is due, since the policy objective of the fee scheme is stated to be to encourage careful decision-making before cases are brought or continued.
UNISON v. Lord Chancellor; Equality and Human Rights Commission (link to bailii.org), para 27

As to the approach on confidential documents, see Employment Law Solicitor Chris Hadrill on applications for disclosure in the Employment Tribunal (link to redmans.co.uk), 17/10/13.

Proving disability, and expert evidence

It is for the claimant to show on a balance of probabilities that they have a disability as defined in the Equality Act. See Proving discrimination: Expert evidence.

Taking witness statements as read

Tribunal rules were changed in 2012 so as to require witness statements to be taken as read, unless a judge or tribunal directs otherwise. So the normal position should be that witnesses do not have to read out their witness statements. This will be welcome to many witnesses who stammer. Presumably witnesses can still be cross-examined at the hearing on their witness statements.

The regulations which made the change are SI 2012 No. 468 (link to legislation.gov.uk). They apply to claims presented on or after 6th April 2012.

Even before the regulations, in 2010, the Employment Appeal Tribunal stressed that it is not a requirement of fairness in every case that the statements of every witness be read aloud in full, or indeed at all: Mehta v. Child Support Agency (2010) (link to bailii.org), particularly para 16. For an outline: Reading statements aloud (link to etclaims.co.uk), 8/12/10.

Risk on costs?

Usually each side bears their own legal costs in Employment Tribunals. However, in a small proportion of cases an unsuccessful applicant is asked to pay the other side's costs. A couple of blog comments:

Situations in which a tribunal will consider awarding costs against a party include (amongst other things) where the claimant has acted unreasonably in conducting the proceedings, or where his bringing or conduct of the proceedings has been "misconceived", which "includes having no reasonable prospect of success". Any chance of an applicant being required to pay the employer's costs may well be reduced if the applicant has sought advice before bringing the claim. Two cases are outlined in Costs in Tribunal - myth or reality (link to trethowans.com), May 2012; but first of those, the Peat case, is under appeal to the Court of Appeal as to whether it is possible to award costs on the basis of unreasonable conduct without finding that a claim was misconceived (casetracker.justice.gov.uk).

(See for England and Wales regulations 2004/1861 (link to legislation.gov.uk), particularly Schedule 1 rule 40. The definition of "misconceived" is in reg.2. The 2004 regulations also provide that preparation time orders (instead of costs orders) may be made in favour of parties not legally represented.)

Meeting costs of witnesses

Tribunal rules were changed in 2012 so that tribunals and judges have powers to direct parties to bear costs of witnesses' attendance, where a witness has attended pursuant to a witness order; and that the party ultimately losing a case should reimburse the successful party for any such costs already paid out. The obligation is not means-tested.

The regulations are SI 2012 No. 468 (link to legislation.gov.uk) and apply to claims presented on or after 6th April 2012.

Keeping things out of the media?

A tribunal may make a restricted reporting order f it considers "evidence of a personal nature" is likely to be given in a disability discrimination case (2004/1861 Sch 1 para 50, as amended by 2010/2317 Sch 8 para 5(2)). However, that is limited to the duration of the case.

Another possibility developed by the tribunals is an anonymity order, which may be permanent: One Brick Court - Cases - F v G UKEAT/0042/11/DA (link to onebrickcourt.com).

There may be drawbacks of orders though - an application for an order may draw attention to the case if the application is unsuccessful (or unless any order made is permanent), and may weaken one's bargaining position by indicating one wants to avoid publicity.

Appeals

An appeal on a point of law can be made to the Employment Appeal Tribunal - www.justice.gov.uk/tribunals/employment-appeals - and potentially further.

Reaching a settlement - settlement agreements

Settlement agreements in general

For a general discussion of settlement agreements, see

The discussion below is specifically on preconditions in the Equality Act for a settlement agreement to be binding.

'Settlement agreements' were previously called 'compromise contracts', but were renamed as from 29th July 2013. The Government believes this will help to avoid any party refusing to sign an agreement on the grounds that they do not want to be seen as 'compromising'.

Preconditions for an agreement to be binding: Introduction

Agreements made with the assistance of an ACAS conciliation officer (see above) will be binding (s.144(4) EqA).

For settlements not made through ACAS, an agreement with the employer is only binding if it is a 'qualifying settlement agreement' (s.144(4) EqA). This means it meet certain conditions. the most important of which is that the claimant received independent legal advice (s.147 EqA).

Issue of who is an 'independent adviser'

There was some doubt whether s.147 EqA excluded a complainant's legal adviser from being an 'independent adviser'. It would be odd to exclude the claimant's lawyer, since it is clearly sensible that advice from a claimant's own lawyer should be enough to make a compromise agreement binding.

An amendment has now clarified that the claimant's own lawyer can be an 'independent adviser'. This took effect on 6th April 2012: The Equality Act 2010 (Amendment) Order 2012 (link to legislation.gov.uk). According to the Government Equalities Office, even before April 2012 the claimant's lawyer was not excluded from being an 'independent adviser'.

Independent advice need not be on merits

The employer will commonly pay or contribute to the employee's legal fees for getting advice on a settlement agreement. However, the employer will often not pay for advice on the merits of potential legal claims against it, i.e. on whether the agreement represents a good deal for the employee. See Russell Jones & Walker information sheet: 'Compromise Agreements' (pdf) - heading 'Costs'.

McWilliam v Glasgow City Council (link to themanagementguru.blogspot.co.uk) (2011), Employment Appeal Tribunal
This case held that compromise agreements entered into by Glasgow City Council to settle equal pay claims prevented the women affected from pursuing those claims, even though their solicitors had not advised whether or not the settlements on offer were a 'good deal'.

A call for caution on lawyers suggested by the employer: He who pays the piper calls the tune (and somewhat unfairly!) (link to www.employmentlawyer-blog.com), 6/9/12.

Victimisation

The Equality Act includes provisions against victimisation of people bringing or involved in proceedings under the Act.

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Last updated 8th March, 2014