A brief explanation of the general principles is provided below.
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Tribunal fees have impacted on the number of claims issued. Many try to resolve discrimination disputes at the conciliation stage.
We will defend a claim for an employer and only fight such a claim on the employers behalf if the prospects of winning are high. At all stages however litigation is a last resort and settlement is the preferred option. It is just cheaper and saves time.
We have dealt with all aspects of discrimination law. We are responsible for some of the important legal cases in this area of law.
We will advice you if you have a valid claim and help you to resolve your dispute without the need to attend a tribunal or court because it is better to save on costs and to avoid a bad legal decision.
Discrimination principles in brief
The law defines certain characteristics as ‘protected’. These are:
· Religion or belief
· Marriage or Civil Partnership
· Sexual orientation
· Pregnancy or maternity
Each of the protected characteristics have their own subsets of rules which will have to be established.
A person discriminates against another if they carry out any of the following acts in relation to a protected characteristic: direct discrimination, indirect discrimination, harassment or victimisation.
1. Direct Discrimination
A person (A) discriminates against another person (B) because of a protected characteristic. Thus if A treats B less favourably than other individuals who do not have the protected characteristic; then this would be discrimination.
An individual claiming discrimination will have to point to someone without the characteristics, who is similar to them and has the same skills; but has not been treated differently. This is referred to as an’ actual comparator’; if one cannot be found, then the tribunal will consider constructing a ‘hypothetical comparator’.
2. Indirect Discrimination
A person (A) discriminates against another person (B) if he applies to B a provision, criterion or practice which is discriminatory in relation to the relevant protected characteristic of B. Thus a person is discriminated against because of a policy introduced by his employer. Usually the policy is intended to apply to all; however it has an adverse impact on a particular group, for example single mum’s and the potential claimant is a member of that group.
A defence to direct discrimination may be occupational requirement. For example the need to cast a woman in a role for women; for example the position of Juliet.
In terms of direct discrimination there is usually no defence of justification, with the exception of age discrimination where such a defence is allowed. This is different to the defence specified below.
There is always a defence of justification in respect of indirect discrimination. This is where the provision criteria or practise is to be regarded as a proportionate means of achieving a legitimate business aim.
The onus will be on the employer to establish the presence of a legitimate business aim. The employer will have to clearly state the legitimate aim in his defence.
If an employee complain about a discriminatory act ( e.g., bring proceedings against an employer or gives evidence on behalf of a colleague because of an employer’s behaviour) and the employee subsequently find that they are being treated badly by an employer because of the action taken; then this will be victimisation.
A person engages in unwanted conduct towards another person and in doing so violates their dignity and creates an intimidating, hostile, degrading, humiliating or offensive environment for that person. An example of harassment would be a woman constantly in receipt of unwanted conduct from a male colleague at work and work colleagues are aware of the behaviour and snigger about it.
Time limits for bringing a claim
This is strict. Usually 3 months less one day from the date of the last discriminatory act.
Prior to bringing a claim the employee must go to ACAS early conciliation.
95% of our clients were happy with the outcome of their dispute.