Remedies & Compensation for Discrimination

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There is no Legal Aid available for cases that go to the Employment Tribunal. However, if the case is then referred to the Employment Appeal Tribunal Legal Aid may be available.

Even if a party wins their case, they will only have their legal costs paid by your opponent in exceptional circumstances, for example where the other party brought or defended a case with no chance of them winning.

A person can make an application to the Employment Tribunal within three months of the discrimination. Though the Tribunal has the discretion to decide exactly when the three months should start. If in doubt expert advice should always be sought on this, as the guidelines are very complicated.

As most cases involve Indirect Discrimination the Employment Tribunal can decide that discrimination has taken place without having direct proof, they will look at the surrounding circumstances. However, the burden is still on the applicant to prove their case.

The applicant can ask the employer specific questions about the incident and also attempt to get the employer to comment on the applicant's version of the events. The employer's replies can be used in the Tribunal as evidence, and inferences can be drawn from the answers provided, or the failure to provide answers. Please note the Statutory Questionnaire provisions within the Equality Act 2010 have now been repealed.

The applicant can also ask the employer or prospective employer to disclose relevant documents, for example, internal memos or notes made by the employer or prospective employer during any interview.

The Employment Tribunal can make the following orders if Discrimination has taken place:

1. Compensation, the respondent, can be ordered to pay compensation, including interest. This does not have any limit stated by the law and so can be quite large. It can include damages for the hurt feelings of the applicant and the loss of the chance of the job. This last part can go beyond the loss of the actual wages. The damages can also be increased if the employer's behaviour was insulting or malicious.

2. The Tribunal can also recommend that the employer takes action to correct the situation or limit the damage done to the applicant. Though the Tribunal cannot force the employer to promote the employee or take on the applicant for the job. The Tribunal can also make recommendations that an organisation take steps to eliminate or reduce the effect of discrimination on other employees, (although this does not apply to equal pay cases).

It is normal for the Tribunal to appoint an official from the Advisory, Conciliation and Arbitration Service (ACAS) to try and work out a settlement between the two parties.

The Equality and Human Rights Commission (EHRC) can also become involved if the case is a test case or it would be unreasonable for the applicant to act alone, for example, an applicant up against a large company with much greater resources.

The EHRC have a Code of Practice on Race Relations, a breach of this code can be taken into account by the Tribunal as additional evidence.

The EHRC can also launch their own investigation and ask the employer to provide evidence and documents.

The EHRC can also do the same in sex discrimination cases. They also have various codes of practice, and again a breach of these can be used as evidence in an Employment Tribunal.

Again there are codes of practice which can be used as evidence before an Employment Tribunal in respect of disability.

If both sides agree, Tribunals can decide cases on written evidence alone. If no defence has been filed, the Tribunal can also decide a case without a full hearing.
 

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