Employment tribunals

Employment tribunals are courts which hear cases and make decisions on employment issues. Discrimination cases are particularly complex, and without experienced legal representation, it can be hard to win a case.

A key stage in preparing a case for a tribunal is for an experienced legal adviser to prepare a questionnaire for the employer. The employer’s answers will be used as evidence at the tribunal and will give insight into how they are likely to defend the case. The questionnaire should seek precise details of facts relevant to the case, for example how decisions about refusing reasonable adjustments were made and justified. (The employer does not normally submit a questionnaire to the employee.)

For all tribunal cases, Acas (the Advisory, Conciliation and Arbitration Service) will offer to try to arrange a settlement. Information and propositions shared with Acas will not be disclosed to the tribunal.

Tribunals are open to the public and, very occasionally, journalists report on tribunal cases. A person bringing a claim can request a Restricted Reporting Order, which specifies that the identities of people involved in the case are not publicly revealed. The order will only be granted if evidence of a personal nature, such as medical details, will be heard. The order only has effect while the case is going on - identities could be revealed afterwards.

A claim is started when a claim form is received by the tribunal office. It must be received within three months of the act of discrimination happening and these time limits are usually rigidly applied.

To be precise, the deadline is three calendar months less one day from the act of discrimination. So if the discrimination occurred on 2 January, the last day for submitting the claim is 1 April.

If there are several discriminatory incidents, the three-month period must be counted from the event that caused the complaint to be brought. Incidents that happened more than three months previously could be treated as background evidence, but not as the subject of a claim.

If the employer has failed to make a reasonable adjustment, time should be counted from the date the employer refused to make the adjustment. If there has been no discussion of reasonable adjustments, it should be counted from the date when the employer could have been expected to make an adjustment.

If the act of discrimination is a disciplinary warning or dismissal, count time from the date the warning or dismissal was given, not from the outcome of an appeal.

Tribunals have the power to extend the time limit if it is just and equitable to do so. But they rarely do so, and it is not safe to rely on this.

It’s important to get advice from a lawyer with experience of employment cases, a trade union, a law centre, a disability-law organisation, or the Equalities and Human Rights Commission.

Although the cost of instructing a solicitor and bringing a case to a tribunal is too high for many people, it may be possible to get legal help in one of the following ways:

• By approaching a law centre (a not-for-profit legal practice providing free legal advice and representation to disadvantaged people) or a Citizens Advice Bureau.

• The Equalities and Human Rights Commission will occasionally help individuals bring a case.

• Trade unions may provide legal representatives for their members in some cases.

• Some solicitors take cases on a no-win–no-fee basis. However, few discrimination cases are certain to be won, so solicitors will not always be keen to work on them.

• Some household insurance policies and credit cards include legal protection insurance. The insurers may recommend a solicitor, but the client has the right to choose their own solicitor.

• A small number of solicitors will take on disability-discrimination claims under the Legal Aid scheme, which is means tested. This provides free legal assistance to prepare the case, but does not cover legal representation at a tribunal hearing (except sometimes in Scotland).

A ‘settlement’ happens when the employer agrees to pay the claimant some compensation instead of going ahead to the tribunal hearing. Acas (Advisory, Conciliation and Arbitration Service) is an independent organisation which encourages employers and workers to negotiate and settle. Its services are free.

A settlement may involve commitments from the employer that would not occur in a tribunal case - for example, to provide a good reference. For a helpful discussion of the pros and cons of settling a case in this way, see Tamara Lewis’s The Discrimination Claimant’s Companion.¹

Staff working in advice and advocacy services may be advising people with HIV who may have suffered disability discrimination. In many cases, staff will not have the skills or experience to take a disability-discrimination case forward, and so the most appropriate step will be to refer the client’s case to a specialist agency.

Nonetheless, before doing so, it may be helpful to establish some key facts about the case. With this information, it will be possible to explain the case to a specialist agency, which will then be able to make a better-informed decision on how to proceed.

If basic information about the case is not clarified first, a referral could waste the time of both the client and the specialist agency.

Key facts that are usually important are listed below:

• Background - the employee’s job and department, the employer’s business, the size of the employer.

• Key dates - when the employee started, any relevant incidents relevant to the case, requests for reasonable adjustments, key meetings, etc.

• Whether managers, human-resources staff or occupational-health staff knew that the employee had HIV/a disability.

• After finding out that the employee had a disability, did the employer do anything to make working conditions easier for him or her?

• Did the employee ever request adjustments to working conditions; what was the employer’s response?

• In a case of poor performance or misconduct, details of the allegations and the employee’s views.

• Whether the employee has had any verbal or written warnings in the past.

• In a case of poor performance, does the employee accept that performance was poor, but was due to HIV/a disability?

• Has a work colleague who is not disabled been treated differently in similar circumstances?

• The employee’s past disciplinary and performance record.

• Does the employee believe discrimination has occurred and, if so, why?

• Has the employee ever complained of discrimination? If so, full details of the complaint and the employer’s reaction are required.

• Could there have been discrimination on other grounds, such as race, gender or sexual orientation?

• Any other discriminatory incidents or remarks.

However, the issues to explore will vary according to the circumstances of the case. Further guidelines are given in Tamara Lewis’s Identifying Discrimination in Employment: A Diagnostic and Referral Guide for Busy Advisers.²