15 years of stammeringlaw 1999-2014
Home Overview Disability Discrimination Employment Services Education PSED Benefits Business Advice Links More...
These pages do not apply outside Great Britain.

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 tribunal. See below Talking to the employer.

ACAS can be brought in to conciliate, and indeed must be notified before a claim is made. See below ACAS - conciliation.

The questions procedure may enable an actual or potential claimant to ask relevant questions of the employer. This has been repealed as regards discrimination which happened or on after 6th April 2014. However, 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 £660 to £33,000.

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 page).

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 a person with special responsibility for diversity or equal rights.

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.

Also from 6th May 2014 it is normally a legal requirement to notify ACAS of a claim before taking it to an employment tribunal, to allow for possible conciliation. 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.

Asking questions

See below Asking questions.

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

From 6th May 2014, claims must normally be notified to ACAS before being taken to an employment tribunal. See All claims 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), plus any time extension under the 'Early Concilition' rules, 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 time limit 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 (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.

Asking questions

Asking questions can be very useful to help a claimant decide whether it is worth bringing a case in the first place, and if so how to formulate and present a case most effectively. It may also in some cases encourage an employer to settle, if answering the questions makes it apparent to the employer that they will have difficulty defending the case. The formal 'questions procedure' is being abolished, but one can still ask questions. See Proving discrimination: Questions procedure.

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 is now that witnesses do not have to read out their witness statements. This will be welcome to many witnesses who stammer. Witnesses can still be cross-examined at the hearing on their witness statements. It is now rule 43 of SI 2013/1237.

Even before the 2012 change, 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.

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 a claim had no reasonable prospect of success.

A couple of links:

(See for the regulations in England and Wales SI 2013/1237, from rule 76. Ability to pay can be taken into account. The 2013 regulations also provide that preparation time orders (instead of costs orders) may be made in favour of parties not legally represented.)

Keeping things out of the media?

A tribunal may make order preventing or restricting disclosure in some circumstances under rule 50 of SI 2013/1237, to protect particularly privacy rights under Article 8 of the European Human Rights Convention.

On orders to protect privacy rights (though prior to rule 50) see http://inforrm.wordpress.com/2011/12/01/case-law-f-v-g-anonymity-orders-and-extended-restricted-reporting-orders-in-the-employment-tribunals-claire-darwin/ and One Brick Court - Cases - F v G UKEAT/0042/11/DA (link to onebrickcourt.com). Rule 50 mentions s.12 Employment Tribunals Act 1996 which specifically deals with disability discrimination.

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'. This would have been odd, 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.

Top

Homepage | Equality Act in outline | Meaning of "disability" | Employment | Goods and services | Education | Human Rights Act | Proposed changes | Social security | Advice | Links | What's new | Site index | Privacy (cookies) | Disclaimer

© Allan Tyrer 1999-2014
Last updated 13th May, 2014