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equalitytalk.org.uk

How Equality Act 2010 applies to adult communication impairments in Britain

  1. Introduction
  2. Disability
  3. Discrimination
  4. Employment
  5. Services
  6. Education
  7. Advice & links

Employment menu:

This website has been produced by the
Communications Forum.
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Employment: Disputes

This page deals with resolving Equality Act disputes on employment.

Links:
How to resolve a problem at work (link to direct.gov.uk)
Disability discrimination at work (link to direct.gov.uk)

Disability Law Service downloads page includes factsheets on 'Employment'.
Central London Law Centre publications.

Talking to the employer

Often any dispute can be resolved informally, by discussing it with one's manager for example. Sometimes it can helpful to approach someone in the Human Resources Department if there is one, such as a diversity officer.

Otherwise one can consider using the formal grievance procedure. Or the employer may already have started a disciplinary or capability procedure. If an employer or employee unreasonably fails to comply with the ACAS 'Code of Practice: Disciplinary and Grievance Procedures', it may be penalised in the level of compensation awarded in any subsequent Employment Tribunal claim.

From the statutory Code of Practice:
An employer has a procedure that allows a grievance relating to harassment to be raised with a designated experienced manager. This avoids the possibility of an allegation of harassment having to be raised with a line manager who may be the perpetrator of the harassment.
Paragraph 17.92, Employment Code of Practice.

Case study:
A post-18 college student on a temporary placement during the vacation was summarily dismissed in the middle of the week due to her stammering. She was aware that her work might stop at the end of any week. However, she was understandably upset that she was dismissed as a result of her speech, at the beginning of the week, and did not receive her wages for the rest of the week. She did not want to pursue it under the Equality Act. However, she wrote a letter both to the employment agency and to the company telling them how upset and hurt she felt after being dismissed because of her stammer. She got a very apologetic reply and the remainder of the week's wage.

Support may be available from the employer's occupational health adviser. It it is worth remembering that occupational health practitioners (who are doctors or nurses) have a duty of confidentiality. Other than in exceptional circumstances - for example, in safety-critical roles where someone is known to be misusing alcohol or drugs at work - they need the employee's consent before disclosing information to managers or Human Resources.

Getting advice

An initial source of advice is the Equality and Human Rights Commission helpline (link to EHRC website).

If you are a member of union, that will often offer free legal advice.

Further sources of advice...

Case study:
A police trainee was told he would not be able to become a Detention Officer because of this stammer. Union involvement was a factor in enabling him to move into the job, for which he received two police awards.
My journey to an Excel award (link to stammering.org)

Conciliation/mediation

ACAS (www.acas.org.uk) can offer free impartial conciliation, either before or after a tribunal application has been made. Another possibility is 'judicial mediation'. See further 'Employment' on adrnow.org.uk.

Questions procedure

This involves sending a form to the employer asking relevant questions. It can help a complainant decide whether to make a complaint and how to formulate and present a case most effectively. More on the questions procedure: Disability discrimination at work (link to direct.gov.uk). Forms and guidance are on the Home Office website.

Employment Tribunal claims

Time limit

A claim to the tribunal must normally be made within 3 months (less one day) after the alleged discrimination. Tribunals are sometimes willing to extend this time limit. For when the time limit starts to run, see Discrimination: When does discrimination take place?

The time limit runs from the discrimination, not from the end of any grievance procedure, and not from the end of conciliation or mediation.

Shift in burden of proof

This rule may help tribunal claimants. Basically it says that the burden of proof shifts to the employer if the claimant makes out a prima facie case. More precisely, the claimant has to prove facts from which the tribunal could decide, in the absence of adequate explanation, that the employer has acted unlawfully (EqA s.136). There are cases on what the claimant has to prove. It is still for the claimant to show that he or she has a disability.

Example
A disabled worker with a communication impairment applies for promotion but is unsuccessful. Her non-disabled colleague successfully gets the promotion. The unsuccessful candidate obtains information using the questions procedure in the Equality Act which shows that she was better qualified for the promotion than her non-disabled colleague. If the employer denies that its decision was disability-related, there will probably be a shift of the burden of proof, so that the employer has to explain to the tribunal why the disabled worker was not promoted.
(Adapted from example in paragraph 15.32 of the Employment Code of Practice, which relates to religion and belief.)

Costs

Usually each side bears their own legal costs in Employment Tribunals. However in a small proportion of cases an unsuccessful applicant may be required to pay the other side's costs. One situation in which a tribunal will consider awarding costs against a party is where his or her bringing or conduct of the proceedings has been 'misconceived', which 'includes having no reasonable prospect of success'. In any event, there can sometimes be an obligation to pay witness expenses.

Remedies

The most usual remedy awarded by a tribunal is financial compensation. This can include injury to feelings, and any loss of salary/wages. Unlike unfair dismissal, there is no fixed limit on compensation. In some cases exemplary or aggravated damages may also be awarded.

The tribunal is also able to make recommendations to the employer. This might be to re-train staff for example, or to ensure its harassment policy is more effectively implemented.

There is more on remedies in the Employment Code of Practice from paragraph 15.37.

Tribunal reform

The Government has proposed numerous reforms to Employment Tribunals. These proposals include, for example, claimants being obliged to submit their complaint to ACAS before putting in a tribunal claim, and introducing fees for tribunal claims.