Who’s liable for a direct discrimination claim and what are the defences?

by Redmans Solicitors on January 6, 2013

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If you’re making an Employment Tribunal claim for discrimination against your employer then you’ll want to pursue a claim effectively and against the right people. In this post we’ll therefore take a look at the nature of discrimination claims in the Employment Tribunal and who potential Claimants can pursue claims against.  We’ll do so by looking at the following elements:

  1. What is a claim for discrimination?
  2. How do I make a claim for discrimination?
  3. Who can be liable for a claim for discrimination?
  4. What defences does my employer have against a claim for direct discrimination or harassment?

What is a claim for discrimination?

Under the Equality Act 2010 workers, employees, former employees, contractors and applicants (among others) are entitled to make a claim to the Employment Tribunal if they believe that they been subjected to any form of detriment because of – or for a reason related to – their protected characteristic. If an applicant (for example) was rejected for a position because they were partially blind then this may constitute direct discrimination. If an employer is found to be liable for discrimination then an award for damages may be made. The Employment Tribunal also has the power to order an employer to undertake certain tasks or make certain recommendations.

How do I make a claim for discrimination?

Employees must submit their Employment Tribunal claim on the prescribed (and completed) ET1 form within the relevant time period (normally three months less one day). These are tight time limits and the law on discrimination claims can be complicated so it may be necessary to obtain employment law advice from an employment law solicitor prior to filing your claim. It is recommended that you complete your form electronically and send it by email to avoid potential problems with time limits. Prior to submitting your claim for discrimination it may also be helpful to determine whether your employer is willing to enter into a compromise agreement with you.

Who can be liable for a claim for discrimination?

If one employee discriminates against another (by, for example, one employee insulting the skin colour of another) then (potentially) both the person who made the remark and the employer of both employees can be liable for a claim for discrimination. However, for the employer to be liable the remark (or any other discriminatory conduct) must be made in the course of employment. If the remark is made in the course of employment then the employer is liable, regardless of whether it knew of or approved of those acts.

What defences does my employer have against a claim for direct discrimination or harassment?

Your employer has one principal defence to a claim for direct discrimination or harassment – that it took all reasonably preventative steps to stop such discrimination occurring. This is known as a “section 109” defence. In order for the defence to work it is not enough to have taken remedial action against the person who has discriminated against you (i.e. by disciplining or sacking them) – the employer must have had in place a system or procedure for preventing such incidents happening in the first place.

Redmans Solicitors are employment law solicitors based in the City of London and Richmond.

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