Make a Tribunal claim for indirect age discrimination

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How to make a Tribunal claim

You can make a Tribunal claim at no cost to the Employment Tribunal, using the ET1 form. Before you submit your claim, you must contact ACAS, the public body who can help to resolve your claim through Early Conciliation. You can read more about this and how to fill in your claim form here.

This guide will walk you through making an indirect age discrimination claim.

How to complete Section 8.2 of the ET1 form

The ET1 form will ask in section 8.2 for the background and details of your claim. The best way to approach this is to write your Particulars of Claim (called a Paper Apart if you are in Scotland). This is where you lay out what happened, what legal claims you’d like to make and your reasoning. 

This section is the heart of your Tribunal claim and is very important and difficult to change later on, so it’s worth spending some time to make sure it’s clear.

How to create your particulars of claim:

  1. Write your ET1 section 8.2

    You’ll normally do this by creating a separate document called the Particulars of Claim (or Paper Apart in Scotland). This sets out the background and details of your claim. Valla offers step-by-step guidance to help you make sure your claims are clear and laid out in the right way.

  2. Convert the file to Rich Text Format (RTF)

    Convert your file to RTF and attach it to the online ET1 form. If you’re not sure how to do this, you can purchase Valla’s Peace of Mind Check and we will sort this out for you.

  3. Submit your ET1 form

    Wait for the Tribunal to acknowledge your claim. They will also send a copy to the Respondent, who will have 28 days to respond.

Specific things to consider in your indirect age discrimination claim

Laying out your claim

When you are claiming indirect age discrimination at Tribunal, you want to clearly argue that a company policy or practice negatively affects people of a certain age or age group. For example: 

  • An employer in England advertises a position requiring at least five GCSEs at grades A to C without permitting any equivalent qualifications. This criterion might be indirectly discriminatory unless it could be objectively justified, since potential job applicants born before 1971 are more likely to have taken O level examinations rather than GCSEs. 
  • An employer advertises a position requiring a postgraduate qualification. This policy might be indirectly discriminatory against younger workers, unless it can be objectively justified.
  • A gym manager tells the reception team that she needs two of them to take on additional duties by modelling for the gym’s social media account. She adds that she wants them to attract a younger crowd of customers and says that anyone interested needs to wear company branded gym gear and “look fit”. This could indirectly discriminate against older staff unless it can be objectively justified.

With indirect age discrimination, it’s important to know that sometimes indirect discrimination is lawful if it can be justified, for example if there are strong business reasons for the practice.

Also, with indirect age discrimination, your employer can be liable for the acts of its employees, as well as the employees being personally responsible.

Proving your claim

You don’t need to attach evidence to a Tribunal ET1 claim, but it’s a good idea to back up your claims by mentioning the evidence you intend to use. For indirect age discrimination claims, people typically refer to evidence such as company policies, reports, emails, letters, meeting notes and witness evidence.

What you can ask for in your indirect age discrimination claim

If you’re successful in a Tribunal claim, you will be awarded a “remedy”. This mainly includes financial compensation, like loss of earnings. It can also include some non-financial remedies too.

Common remedies people ask for at Tribunal

Some of the key remedies you can ask for at Tribunal are:

  • The money you have lost from being out of work, or working in a lower-paid job.
  • The money that you expect to lose in the future from being out of work, or working in a lower-paid job.
  • Wages that you are owed, including holiday pay and notice pay.

Discrimination-specific remedies

As well as the common remedies that you can ask for, discrimination-specific claims also have the option to include an “injury to feelings” remedy. This is compensation which you can be awarded when you have been hurt or distressed because you have been discriminated against.

Injury to feelings is generally awarded within one of three “Vento bands” depending on severity:

  • for less serious cases - £1,200 to £11,700
  • for more serious cases - £11,700 to £35,200
  • for the most serious cases - £35,200 to £58,700

For example, Rupa won £800 for injury to feelings after she made claims to the Employment Tribunal for indirect age discrimination and direct age discrimination. Rupa was 64 years old. She worked for a pub that, whilst closed for refurbishment, put up a poster advertising for staff between the ages of 18 and 25. Similar adverts were also placed on a job search site and on Facebook. Rupa was denied pay whilst the pub was shut, removed from the company WhatsApp group, and was told that she would never work for the pub again. She also made a number of other successful claims to the Tribunal, including one for unlawful deductions from wages.

Real indirect age discrimination cases you can learn from

Summary: a private school teacher who had worked there for almost 20 years, but who was not technically a qualified teacher, was dismissed after the school changed their policy, requiring all teachers to be qualified. This would have meant that the teacher, who was 60 years old at the time, would have needed to do additional training which she would not have got the benefit of until after she had retired. 

Total award: £141,334.64

Outcome: the teacher was successful in claims for unfair dismissal and indirect age discrimination.

Summary:  Supreme Court allowed an appeal of an indirect discrimination case. The court argued that an assessment at work that you have to do to get promoted, which has a much lower pass rate for older people and people of colour than younger people and white people, was potentially indirectly discriminatory, even though no-one knew why the pass rate was lower.

Outcome: the case was sent back to the Tribunal for them to decide whether there had in fact been indirect age and/or indirect race discrimination.

Further reading

Related Tribunal claims 

If you’ve faced age discrimination at work, there are potentially a number of other discrimination claims that could apply to you:

  • Direct discrimination - where you’ve been treated badly because of your age.
  • Victimisation - where you’ve been treated badly because you made or helped with an age discrimination complaint.
  • Harassment - where you’ve been subjected to behaviour that relates to age and is unwanted. This behaviour must make you feel, or be intended to make you feel intimidated, degraded, or offended.
  • Sexual harassment - where you have experienced unwanted conduct of a sexual nature, or been treated less favourably because you have either submitted to or rejected sexual harassment, or harassment related to sex or gender reassignment. 
  • Failure to make reasonable adjustments - where your employer has failed to make a reasonable change to help you to do your job, or apply for a job, to reduce the impact of your disability.
  • Discrimination arising from disability - where you’ve been treated unfairly because of something connected to your disability rather than the disability itself.

You may also be able to make a claim for unfair dismissal, constructive dismissal or another type of employment law. You can download your free Action Toolkit to find out more.