Make a Tribunal claim for indirect 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 write your particulars of claim using our ET1 Particulars of Claim template.
This guide will walk you through making an indirect 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:
- 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.
- 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.
- 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 discrimination claim
Laying out your claim
When you are claiming indirect discrimination at Tribunal, you want to clearly argue that a company policy or practice negatively affects a group of people who fall under the protected characteristic you are claiming. For example:
- A dress code policy that bans twist-outs and locs, hairstyles most common for Black people - this could be indirect race discrimination.
- An employer asks all staff to be in the office until 6pm, which disadvantages women as they are more likely than fathers to carry primary childcare responsibility (although this is less obvious than a generation ago) - this could be indirect sex discrimination.
- A company holds its selection processes on Saturdays and a Jewish person decides not to apply as they observe the Sabbath on Saturdays - this could be indirect religious discrimination.
With indirect 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 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 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 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.
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 - £1,100 to £11,200
- for more serious cases - £11,200 to £33,700
- for the most serious cases - £33,700 to £56,200
For example, Amanpreet won around £10,000 where his employer instituted a dress code that prohibited wearing a turban. A proportion of this award was made up of injury to feelings.
Real indirect discrimination cases you can learn from
Summary: an employer invoked a capability process at work instead of a welfare procedure for an autistic employee who had been recently diagnosed. This process severely disadvantaged him.
Total award: £34,458.21
Outcome: the Tribunal found that the employer had indirectly discriminated against the employee, because they failed to implement reasonable adjustments and then inappropriately used their capability procedure to dismiss him.
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.
Related Tribunal claims
If you’ve faced 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 a protected characteristic.
- Victimisation - where you’ve been treated badly because you made or helped with a discrimination complaint.
- Harassment - where you’ve been subjected to behaviour that relates to a protected characteristic 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 (note that this only applies to disability) - 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 (note that this only applies to 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.