Discrimination claims can be difficult to prove as there is normally no written evidence and of course, the perpetrators are likely to deny all knowledge. However if you can prove that you have been put at a disadvantage because of discrimination, then you may be able successfully to negotiate a settlement agreement, or to make an employment tribunal claim. The Employment Tribunal Services publish regular statistics that tell you how difficult discrimination at work claims are to win. What those statistics don’t tell you is that in reality discrimination cases are usually agreed through an out-of-court settlement rather than won in court. Establishing discrimination to the tribunal’s satisfaction may be difficult but that doesn’t mean that discrimination within the workplace doesn’t exist – it most certainly does! Some employers will often see the considerable benefit of settling any potential claim long before it gets to the tribunal but others will deny and, at times even lie, to avoid dealing with the uncomfortable truth that they employ managers who engage in unlawful and discriminatory conduct. Who can be discriminated against? Under the Equality Act 2010, discrimination may apply to individuals who have one or more of what are called ‘protected characteristics’, as follows: Age: a person of a particular age or belonging to an age range – for example: people of 18-30 years, or employees over the age of 55. Disability: a person has a disability if she or he has a physical or mental impairment which has a substantial and long-term adverse effect on 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. Marriage and civil partnership: the legal union between a man and woman or between a same sex couple. Pregnancy and maternity: pregnancy is the condition of being pregnant or expecting a baby. Maternity refers to the period after the birth, and is linked to maternity leave in the employment context. Race: refers to the protected characteristic of race. It refers to a group of people defined by their race, colour, and nationality (including citizenship) ethnic or national origins. Religion or belief: religion has the meaning usually given to it, but belief includes religious and philosophical beliefs including lack of belief (such as Atheism). Generally, a belief should affect your life choices or the way you live, for it to be included in the definition. Sex: a man or a woman. Sexual orientation: whether a person’s sexual attraction is towards their own sex, the opposite sex or to both sexes. Types of Discrimination Direct Discrimination This is when you are treated differently and badly, or worse than others, because of age, sex, race, sexual orientation (or other protected characteristic – see above) Unfortunately, not all unfair treatment will be unlawful discrimination under the Equality Act 2010. The reason why you are being treated differently – or less favourably – is important. And in order to prove discrimination, you must show that it is because of a protected characteristic. In reality, this is difficult. Few people who discriminate do it explicitly. In rare cases, we see an employer who might reveal their hand by saying or doing something which would amount to direct discrimination. Most often it is difficult to get to the truth, and a long road of grievances and potentially tribunal proceedings may be the only option to uncover the discriminatory conduct. Examples: 1. Direct Race Discrimination The arrival of a new CEO. As soon as he starts expresses the wish to employ people of the same national origin as himself, makes comments about others being workshy, and staff start to find they are put on performance improvement plans 2. Direct Sex Discrimination A woman is interviewed for a new role and is asked if she plans to have children soon. She says she does, and does not get the job. 3. Direct Religious Discrimination Refusing to employ a woman because she wishes to wear an hijab. Indirect Discrimination This is when an employer treats everyone the same but the effect of the treatment subjects you to a disadvantage because of your protected characteristic. For example: 1. Indirect Sex Discrimination An employer which has a policy that requires all staff to work full time is likely to place a woman who has primary child care responsibilities at a disadvantage compares to a male colleague. 2. Indirect Religious Discrimination An employer who insists that all staff must work on a Sunday may cause a disadvantage to someone whose religious observances requires them to refrain from work on a Sunday. Employers have a defence if they can show there is an objective justification for the requirement. It is complicated stuff, the appeals courts have to give regular guidance on the principles of objective justification. Harassment This is when there is unwanted conduct related to a relevant protected characteristic, which has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual. Victimisation This is when you are treated badly because you have made a ‘protected act‘ (or because it is believed that you have done or are going to do a protected act). A protected act is making a complaint of discrimination or offering assistance to someone else in their discrimination claim. So victimisation is essentially retaliation for complaining about discrimination. Time limits in discrimination at work claims On the plus side, there is no minimum period of employment before you can make a claim in the employment tribunal for discrimination. Unlike unfair dismissal, you do not have to wait two years before you have the right to bring a claim. Your rights not to be subjected to less favourable treatment began on the first day of your employment. For example, you could claim because you were denied an interview because of a protected characteristic. The rules on time limits for making a tribunal claim for discrimination are complicated, and as a rule of thumb, you only have three months to commence an employment tribunal claim for discrimination. This will start with notifying ACAS through the Early Notification Form . The clock starts ticking after the discriminatory incident or course of events in question (unless you can show it was reasonable in all the circumstances to wait). If you miss the time limit, the tribunal can reject your claim, unless they decide that it is “just and equitable” to accept it. You need a really good reason for waiting more than three months For this reason, your employer will be less likely to offer you a decent settlement agreement if you have missed the deadline. Employers will often try to string out any grievance procedure to take you over the 3 month time limit for issuing a claim! Discrimination settlements – how much money should I get? If you want to understand a bit more about how much to ask for in your discrimination agreement, it’s necessary to put it into context by considering how a discrimination claim would be dealt with in an employment tribunal. Why? Because most employers will ask their lawyers the question ‘if this went to tribunal what would happen?’ They would then base any settlement agreement offer on their lawyer’s answer. Note that the very large payouts that get reported in the media are often due to financial loss because the discrimination meant that the individual could not work again. These are extremely rare cases and should not be taken as in any way likely to apply to you. If, for example, you were earning £40,000 per year, and you are 65 years old, you might be able to claim 5 years’ salary totalling £200,000, IF you can show that you are unlikely to find another job. Or if the discrimination really set you back psychologically, and you have medical evidence to support this, you may be able to claim for years’ worth of compensation. We wouldn’t want you to think, just because you read about very large payouts, that the same always applies to discrimination claims: it doesn’t. Discrimination tribunal claims have three elements: 1. Financial loss is based on the same principles as for unfair dismissal, although it is theoretically unlimited rather than being capped at £86,444 (October 2019), which is the limit for normal unfair dismissal claims in the tribunals. In practice this is limited to the amount of money you lost whilst out of work – so if you got another job straight away on the same or more money, then you have suffered no financial loss. 2. Injury to feelings is always payable to claimants in successful discrimination cases. Guidelines on the amounts of compensation were set out by the Court of Appeal in the ‘Vento vs Chief Constable of W. Yorkshire Police’ case back in 2002. These have since been updated (in April 2019) and are currently as follows: Band 1: £900 – £8,800 [one off or isolated incident – this is the most common award by far]; Band 2: £8,800 – £26,300 [more serious discrimination]; and Band 3: £26,300 – £44,000 [sustained campaign of the most serious discrimination – rare]. 3. Personal injury compensation is theoretically unlimited but in practice it’s tightly pegged to the type of injury caused, and its very difficult to prove, so please don’t assume that you’ll get anything for this. It’s based on the same principles as for say a car accident, although the kinds of injuries most common in discrimination employment matters are psychological injuries such as depression and similar disorders. Medical evidence is necessary here, and you have to show somehow that the employer’s conduct was the only cause of your condition, and that they should have known that their actions could lead to injuring you. Negotiating in discrimination at work cases Being discriminated against, i.e. being treated less favourably or harassed because of a ‘protected characteristic’, as outlined above, is one of the most serious claims to be made at an employment tribunal. It is taken very seriously by a judge and by society at large. Discrimination claims can be valuable, but also delicate and complicated, so any negotiations must be conducted carefully in order to have any chance of success. Some key points in negotiating a settlement agreement for discrimination at work The first thing we would say is that it’s important for you to have got your facts and allegations exactly right. You need to know what you are claiming and why and how to prove it. Sometimes, this will not be readily apparent; therefore, you need to find out more information from your employer. This is where the ‘questions procedure’ (previously known as ‘discrimination questionnaires’) under the Equality Act 2010 comes in. It is a formal, statutory procedure that you can use to ask questions about your employer and your employer must answer or ‘adverse inferences’ may be drawn. Adverse inferences means that any judge would be entitled to find that the employer was up to no good. You can download a detailed document on the questions procedure, including a questioner’s template, from the ACAS website. Commencing the questions procedure is a good negotiating tactic, as once your employer has a copy of your questions, they know that you mean business and that you have fair technical knowledge, which means that you might be able to win any tribunal claim. It is sometimes a good idea to start the questions procedure and then commence without prejudice negotiations at the same time as this allows your employer not to investigate the questions and therefore to keep the issues confidential. If you simply want answers from the questions procedure, or want to wait tactically for the answers as you believe this will put you in a stronger position, then wait for your employer to answer the questions and then use the answers, or the lack of answers, as the basis for writing your without prejudice letter. Remember, be strong, but professional in tone and do not make wild allegations that are unsupported by facts. See also our without prejudice letter templates for examples of without prejudice letters used in real life cases. Make a claim while you are still in employment With discrimination claims, if you’re still employed then you can make a claim while your employment continues. This is a good negotiation tactic too, as it puts huge pressure on your employer: one of its employees is suing it and they remain in the company! The first instinct is to get rid of that employee, but they can’t without victimising them and thus increasing their likelihood of having to pay compensation. This is the perfect time for you to write a without prejudice letter and offer settlement and termination in return for a good settlement package. Discrimination at work claims can damage an employer’s reputation and business Remember, being accused of, or found culpable of, discrimination is worrying for an employer. It leads to a bad reputation and the possibility of further claims. If, using evidence and your knowledge of the law, you can show to your employer in correspondence that you have a case that has prospects of success in an employment tribunal, then your employer will probably want to settle the case. What to do if discrimination at work negotiations become deadlocked If negotiations become deadlocked when negotiating in a discrimination case, now is a good time to submit a grievance, a subject access request, and/or a questions procedure. If all of those have failed to secure the outcome you wanted, issue a claim in the employment tribunal or commence ACAS pre-claim conciliation. It will show your employer that you are serious and often leads to an improved offer. If you previously decided not to instruct a lawyer, now may be the time to consider instructing one if a deadlock is reached. To sum up: factors to consider Was this a one off event or has this been going on for months or years? Has anyone witnessed it? Have you complained about the treatment or requested that it should stop? When did it happen? Next steps We often find that our Clients are able to identify that they have been subjected to long-term and often sustained detrimental treatment. Often they don’t know why but believe that it may have been because of a protected characteristic. We can help you identify the claims that might have, advise you on time limits and vicarious liability and also discuss the best strategy. Could Lex help? If you need further advice and assistance with your employment matter, Lex may be able to help. Just get in touch here.