Dealing with problems

Published: 05 August 2010

There are three main ways a person can deal with discrimination they think they have experienced:

  • Complaining directly to the person or organisation they believe has discriminated against them.

  • Asking someone else to help through mediation or conciliation.

  • Making a claim in court.

It isn’t necessary to choose only one of these. Instead, each one could be tried in turn. If the first does not work, try the second, and if that is also unsuccessful, a claim can be made in court. However, if a person does decide to make a claim in court, they need to start the process of making the claim within six months of what has happened.

Complaining directly to the person or organisation

The organisation may have a particular way they would like people to comment, complain or give feedback (for example, a particular person to contact). When complaining, it’s advisable to stay calm and give a brief, factual account of what happened. It may also be helpful to state why this was the wrong way to be treated.

The organisation may need some time to look into what has happened. But if they don’t answer within a reasonable time, the complainant can remind them of the problem. Many organisations have a written complaints procedures setting out the process to be followed and an acceptable timeframe, which may help people make their complaint in the most effective way, and follow it up if necessary.

Alternative dispute resolution or conciliation

If both parties agree, it may be possible to use ‘alternative dispute resolution’. This involves finding a way of sorting out the complaint without a formal court hearing. The approach involves mediation and conciliation.

More information is available from ADRnow (www.adrnow.org.uk), an information service run by the Advice Services Alliance (ASA) in England and Wales, or from the Scottish Government publication Resolving Disputes Without Going to Court.1

In addition, the Equality and Human Rights Commission runs a conciliation service as an alternative route to court action.

Making a claim in court

Claims can be made in the County Court in England and Wales, and in the Sheriff Court in Scotland. If the organisation is a public authority, it’s also possible to make a claim for judicial review in the High Court in England and Wales or the Court of Session in Scotland.

However for cases of discrimination in relation to an immigration decision, the claim must be brought to the same tribunal that is deciding the immigration case or appeal.

There are time limits for making a claim in court for unlawful discrimination, harassment or victimisation relating to equality law – it must be made within six months of the act that is being complained about.

If the complaint is about behaviour over a period of time, then the six months begins at the end of the period. If the complaint is about a failure to do something, for example, a failure to make reasonable adjustments, then the six months begins when the decision was made not to do it.

As with other civil cases, both the person making the complaint and the service provider must try to prove the facts of their case are true on the balance of probabilities. The burden of proof begins with the person making the complaint.

Before going to court, one important way to gather evidence is to submit questions or a questionnaire to the service provider. This may also help a lawyer decide whether a valid claim can be made or not. While the service provider is not legally required to answer the questions, it may harm their case if they do not.

If the person making the complaint wins the case, the court may order the service provider to make ‘a remedy’. The main remedies available are:

  • Damages (including compensation for injuries to feelings).

  • An injunction in England or Wales or an interdict in Scotland – this is an order made by the court to stop a person or organisation from acting in an unlawful way.

  • A declaration in England or Wales or a declarator in Scotland – this is a statement by the court which says that someone has been discriminated against.

The court can also order the service provider to pay the complainant’s legal costs and expenses. But if the complainant loses their claim, they may be ordered to pay the other side’s legal costs and expenses.

References

  1. Scottish Executive Justice Department Resolving Disputes Without Going to Court, Scottish Executive, www.scotland.gov.uk/Resource/Doc/47060/0025017.pdf (accessed 5 August 2010), 2005
This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.
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This content was checked for accuracy at the time it was written. It may have been superseded by more recent developments. NAM recommends checking whether this is the most current information when making decisions that may affect your health.

NAM’s information is intended to support, rather than replace, consultation with a healthcare professional. Talk to your doctor or another member of your healthcare team for advice tailored to your situation.