Case management and preparation 

On this page

• Your options before lodging an Originating Application (ET1) form
  
• Completing and submitting the ET1
  
• Submitting the ET1 form
  
• Checking the respondent's Notice of Appearance (ET3) form
  
• Negotiating a settlement with ACAS
  
• The RR65 questionnaire procedure
  
• The respondent’s response to the RR65
  
• Further particulars, documents and written answers to questions
  
• Witnesses
  
• Weighing up the evidence
  
• Compensation for financial and non-financial loss
  

Your options before lodging an Originating Application (ET1) form

Option 1: Write to employer

This can involve assisting a client to write a letter, writing one on their behalf, or simply advising them to write to their employer with an explanation of their concerns. This may result in informal methods of resolving the dispute.

Option 2: Invoke the grievance procedure

As indicated on the Initial Stages page, since the introduction of the Dispute Resolution Regulations which came into force on 1 October 2004, there are new compulsory procedures that all employers and employees must use in attempting to resolve issues of grievances (such as a claim of racial discrimination), disciplinary action and dismissal where a grievance is formalised.

The purpose of their introduction was to encourage employment disputes to be resolved internally without the need for costly and time consuming employment tribunal claims.

Option 3: Request written reasons for dismissal

Receiving written reasons for dismissal from the employer will assist you in deciding whether to continue to support the clients case and is the first indication of what the employers argument may be at an ET hearing.

If an employer does not provide written reasons for dismissal within 14 days of receipt of the request, this is a competent claim that can be added to the ET1, attracting additional compensation if successful.

Option 4: RR65 questionnaire procedure

Issuing the employer with an RR65 questionnaire prior to initiating a legal case allows the client to ask questions of the employer regarding their alleged discriminatory treatment and can uncover vital information.

This must be done within three months less one day from the last date of discrimination.

Information received from the employer in response to the RR65 questionnaire can aid a decision whether or not to pursue an ET case. However, it is open to the claimant to send an RR65 after initiating ET proceedings, within 21 days of lodging the ET1 (see the section on RR65 questionnaire procedure for more details).

In each case, you must ensure that the time limit for lodging the ET1 does not overrun. If, for example, the employer has not responded to the RR65 questionnaire or the grievance procedure has not yet come to a conclusion, you should lodge your clients ET1 form and include these details for the ETs information.

Completing and submitting the ET1

General points

The Employment Tribunal process is initiated by the lodging of a claim form (ET1) with the local Employment Tribunal Service.

As a result of the introduction of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (the Employment Tribunals Regulations) and the accompanying Employment Tribunal Rules of Procedure in Schedule 1 (the Employment Tribunals Rules) on 1 October 2004, the use of the claim form and response form has been mandatory since 6 April 2005.

Copies of the ET1 form are available from your local Jobcentre Plus office, Citizens Advice Bureau or Law Centre. You can also download the form, or complete it online, at the Employment Tribunals service website.

If you need a copy of the form in a special format, such as large print, braille or audio cassette, contact the Employment Tribunals service on 0845 795975 or minicom 0845 7573722.

Copies of the ET1 are also available in Bengali, Hindi, Urdu, Gujarati, Punjabi, Cantonese, Gaelic and Welsh. To request these, call the Employment Tribunals service on 0161 833 6314.

Time limits

The ET1 must be normally be presented to the ET within three months less one day from the last date of discrimination. However where, as in most cases, the statutory grievance procedures must be followed by an employer and employee, the time limit must be extended by a further three months.

Remember that if the time limit expires on a weekend or bank holiday, it is your responsibility to ensure that it arrives at the relevant office before this date. Double check the time limits for each claim made in the ET1 as the time limit for each claim may differ. Note that the lodging of an RR65 questionnaire prior to the ET1 does not start the ET process as this is only achieved by the lodging of the ET1 with the ET.

Late claims

It is possible for the ET to grant an extension on the time limit, but a request should be made to the ET in genuine cases only. In discrimination cases the ET will only allow a late application if in all the circumstances of the case the ET consider it just and equitable to do so. The ET may hold a separate pre-hearing review on this issue (see section on Types of Hearing for further information) or decide whether to allow the case to proceed as a preliminary issue at the full hearing. You should be in a position to explain why the ET1 was not lodged on time and how the late lodging has not affected the employer.

In all other non-discrimination ET cases the test is whether it is reasonably practicable to extend the time limit.

Guidance notes on completing the ET1 form

Completing the ET1 fully and accurately can be crucial for your case. Generally it is useful to take each section of the ET1 in turn and complete as follows:

Box 1 Claimants personal details

Ensure that this box is completed fully and accurately. Where you have a representative acting, their details should be provided in Box 11.

Box 2 Respondents details and where claimant worked/applied to work (if different)

The name and address of employer will normally be the regional Head Office of the company or, if the case involves fellow employees who have discriminated against the claimant, the names and addresses of these individuals.

If the addresses of individuals are not known, they should be listed c/o the address of the employer.

If the case is against a partnership or sole trader it is useful to cite the respondent as an individual trading as the partnership or business name, for example Mr xx t/a xxx Convenience Stores.

Location details of where the claimant worked, or applied to work, often differ from the employers Head Office address, in particular where the claimant was seconded to work at premises not those of the employer or the company is very large.

Box 3 - Action before making a claim

This section is important for the ET as it indicates to it what type of claim can be brought, or whether it has been brought prematurely, for example if the statutory grievance procedures have not been followed. If they have not been followed the ET will not allow the claim to be lodged.

Box 4 Employment details

This includes aspects such as dates of employment, position in the organisation, hours of work per week, pay, and if employment has ended, whether any notice period was worked.

Prior to completing this box it is helpful if the claimant can provide you with some proof of his/her dates of employment, such as an appointment letter or letter of dismissal, payslips and a letter of termination.

This will give you evidence for the ET hearing if necessary and avoid more work later on in the case.

Dates of employment

In relation to employment dates, there are a number of non-discrimination claims that require qualifying service, that is, most unfair dismissal claims and it may be imperative that exact dates are known if one of these is being pursued as well as a race discrimination claim. However, claimants often cannot remember the exact dates of employment. This may or may not be crucial to the outcome of the case. In this situation you should establish approximate dates of employment and possibly seek to clarify this with the employer through either the ET3 or requests for further particulars.

Position

This can often be found on a contract of employment or will be the job that the claimant applied for. If possible be specific about the job title.

Hours of work

This section requires the claimants basic hours per week. If the hours varied you may indicate this (ie 35-40 hours per week. If the claimant carried out regular and guaranteed overtime you may wish to indicate this here. Again accuracy is important for the calculation of losses and compensation in the event of the case being successful or for the negotiation of a settlement.

Pay

Pay before tax
This is the claimants gross pay, before tax or other deductions. Do not include details of overtime payments or bonuses at this section.

Normal take-home pay
This is the claimants pay including overtime and bonus payments but after deductions.

Box 5 Unfair dismissal or constructive dismissal

The claim of racial discrimination may also incorporate as claim of unfair dismissal or constructive dismissal which is where the claimant resigns because of something the employer did or failed to do which made you feel you could no longer continue to work with them.

In this section details must be provided of why you think the dismissal was unfair, whether you were in your employers pension scheme or received any other benefits, whether you have another job and if so when you started and how much you are being paid, and what remedy you would like if you are successful.

Remedy sought

You should explain to the claimant that they would have to make a decision about what remedy they would prefer. You should be in a position to explain that there are three remedies available:

Re-instatement

• If successful, the claimant would continue to work in their old job
• An order to compensate the claimant for losses incurred from dismissal to re-instatement will also normally be made by the ET.

Re-engagement

• If successful, the claimant would begin another job/contract with the employer or a related company on terms no less favourable than their old job
• An order to compensate the claimant for losses incurred from dismissal to re-engagement will also normally be made by the ET

Compensation only

• The claimant would claim only for a monetary settlement, without attempting to resume or regain employment with the employer.
• This is useful where there has been severe damage to the employer-employee relationship and the employee does not feel able to resume or regain employment in the same environment.

Box 6 Details of discrimination

In Box 6.1, you must indicate the type of discrimination that the client has suffered. It may be that the claimant has suffered several types of discrimination such as, for example, racial and religious discrimination, or racial discrimination and sexual discrimination. In that case several of the boxes should be ticked.

It may also be that the claimant has other claims which should not be indicated in this box but should be indicated in other boxes (Box 5, Box 7, or Box 9 ). From the initial interview you should have identified these claims.

Further information on all competent claims within the jurisdiction of the ET can be found by contacting the Employment Tribunal Service, or by obtaining a copy of their booklet entitled Making a claim to an Employment Tribunal which should be available from their offices. (See section on Useful Addresses for more information)

Details of complaint

Box 6.2 relates to the details of the complaint. This is the most important section of the ET1 and it is vital that it is filled out in an informed and intelligent way. It must indicate every incident which amounted to discrimination, the dates of the incidents and the people involved.

The following points will assist you in filling out this section:

In most circumstances it is easier to complete Box 6.2 by completing a Paper Apart and referring the ET to this. For example within Box 6.2 you may write SEE PAPER APART and attach a typewritten A4 sheet(s) of paper giving relevant details. If you decide to follow this, ensure that the paper apart is headed as follows:

• Paper Apart
• (Claimants name) v- (Respondents name)
• Case Number: x/xxxxxxx

Be as concise as possible in Box 6.2, using short sentences and paragraphs and avoid using long sentences. Attempt to recount the key facts of the case accurately and chronologically. This avoids giving superfluous information, which in turn makes the ET1 easier to follow. Generally you will receive a better response within the ET3 if these basic points are followed, as the respondent will find it easier to deal in turn with each of the points made in the ET1.

Relevancy is key to filling out the ET1. Be specific about the information that you provide as this is more likely to prove that the claimant has a case with reasonable prospects of success and can disclose a factual situation for which he/she is entitled to a remedy.

Only put in a verbatim account of a conversation if it is crucial to the case. In most circumstances the essence of the discussion will suffice and you can lead evidence of the conversation at the hearing.

Although you should attempt to make Box 6.2 a brief statement of the claimants complaint, you must be careful not to omit important parts of the claim the claimants credibility may be in question if he/she gives evidence at the hearing on issues not complained of in the ET1.

If you have previously served an RR65 questionnaire on the respondent, you should refer to your file copy and check that the details in this section of the ET1 correspond with the information in the questionnaire and also that no important details have been omitted.

If the respondent has failed to respond to a request to complete an RR65 questionnaire, you should refer to this at this point in order to bring the failure to the ETs attention at an early stage. This may pressurise the respondent into replying to the RR65 questionnaire.

Box 7 Redundancy payments

This box only needs to be completed if you are claiming you are owed a redundancy payment

Box 8 Other payments you are owed

This box only needs to be completed if you are claiming that the respondent owes you money other than a redundancy payment. This may include unpaid wages, holiday pay, payment for a period of notice, unpaid expenses commission or a bonus.

Box 9 Other complaints

This box only needs to be completed if a claim is not covered by any of the earlier sections relating to discrimination and other claims such as unfair or constructive dismissal. For example you may have a complaint that you have suffered detriment at work because you raised an issue of public interest which you believed was a protected disclosure (whistle blowing).

Box 10 Other information

This may include information such as whether you have special needs (for example, because you do not speak English well and need the services of a translator), an explanation of why the claim has been lodged out of time or to let the ET that internal grievance procedures have not yet been completed.

Box 11 Representatives details

You should fill out this box with your details, preferably giving the name of the person likely to deal with the case in its entirety. Completion of this box means that the representative listed will receive all correspondence in connection with the case, from the ET, ACAS and the respondent. You should advise the client that they should expect to be in frequent contact with your organisation if this is the case.

Claimant's signature

It is important that the claim form is signed and dated by the claimant. In some cases the claimant's representative may be permitted to sign and date the claim form on the claimants behalf. Contact the Employment Tribunal Service for further information.

Submitting the ET1 form

The ET1 should be sent to the relevant address in Wales or England, or the Central Office in Glasgow (see section on Useful Addresses for further details).

Sending the form to the incorrect office can cause delay. It is good practice to:

• do a final check that all parts of the ET1 have been completed accurately omissions or mistakes only cause delays in the later stages;
• ensure that the ET1 has been signed by the claimant or on his/her behalf; and
• take a photocopy of the originating application and retain on file;
• Post the ET1, using the Recorded Delivery service (keep this evidence on file), or deliver it by hand, asking the ET staff for a receipt (keep this evidence on file), or fax the ET1 to the correct ET office, keeping the fax receipt on file as evidence.

After the ET1 is lodged

On receipt of the ET1, the ET office should send an acknowledgement (ET5) within one week to the person specified in the ET1 Box 7 as the claimants representative (or the claimant themselves if Box 7 has been left blank) .

The case will be given a case number which should be used in all future correspondence (along with the names of the claimant and respondent in the case) with all parties involved in the case, such as the respondent, ACAS, the ET, and so on.

Five days after receipt of the ET1, the ET will send a copy of the ET1 to the respondent employer, together with an ET3 form. This gives the respondent the opportunity to resist the application. The ET should inform you when the ET1 is sent to the respondent.

A copy of the ET1 is also sent to the Advisory, Conciliation and Advisory Service (ACAS).

Shortly after this time you will receive a date-listing letter from the ET, giving an eight-week time frame and asking when you and the claimant will not be available.

You should contact the client and all witnesses to confirm this information and advise them to keep this period free. You should check in particular whether there are any other existing ET hearings within this time frame which are likely to clash with the present case. Insofar as possible, attempt to predict the length of the hearing as requested on the form and how many witnesses you are expecting to call. This information may only become apparent weeks after the date-listing letter has been completed and at this time you should contact the ET with any further information on this matter.

Not later than 14 days before the hearing is due to take place, you will receive a Notice of Hearing to inform you when and where the hearing is due to take place. You should advise the client that the hearing date might not be set until many weeks after the ET1 is lodged, as the ET service is currently very busy. Hearing dates will only be postponed if there is good reason to do so and this should be made clear to the client.

Checking the respondent's Notice of Appearance (ET3) form

The respondent has the opportunity to resist the claimants case, and to explain their reasons for doing so, by using the Notice of Appearance (ET3) form.

Time limits

The respondent has 28 days from the date of receipt of the ET1 application to lodge the ET3 with the Employment Tribunal.

A late ET3 may well be accepted, but if no ET3 is lodged the respondent cannot defend the case.

You should keep an eye on this time limit, and if no response is received by you within the time limit you are permitted to write to the ET bringing this to their attention.

Even if the respondent does not lodge an ET3, you should still contact them in an attempt to progress the case, such as by making requests for further particulars, documents or written answers to questions. This will show the ET at the hearing that you have made numerous attempts to engage the respondent in an attempt to avoid the hearing taking place.

Checking the ET3

If, and when, you receive the ET3, you should go through each stage to check the information that you have been given. In particular, you should be looking for any admission of liability by the respondent or information that will be favourable for your case:

Box 1 Respondents details

Check that these details correspond with the information provided by the claimant in the ET1. If they do not you must contact the claimant to check these details. If the claimant has been mistaken you will have to request the ET to allow you to amend the ET1 in order to add or substitute a respondent. If the claimant disagrees with the employers information you should write to the ET and bring this to their attention and ask that the claimant produce any evidence of her employers identity i.e. contract of employment, payslips, etc.

Box 2 Action before claim

This is similar to Box 3 of the ET1 claim form. It is important for the ET as it indicates to it what type of claim can be brought, or whether it has been brought prematurely, for example if the statutory grievance procedures have not been followed. If they have not been followed the ET will not allow the claim to be lodged.

Box 3 Employment Details

This responds directly to what the claimant has indicated were the terms of the employment in Box 4 of the ET1 claim form. It indicates:

• whether the dates of employment are agreed, and if not why does the employer disagree and what were the dates of employment;
• whether the description of the position is correct and if not what was the claimants position;
• whether the details regarding working or being paid a notice period are correct, and if not, why not;
• whether the hours of work are correct and if not what is the correct number; and
• whether the earnings given by the claimant are correct and if not what are the correct details.

Dates of claimant's employment

Check that these details correspond with the information provided by the claimant in the ET1.

If they do not (and you have no evidence to the contrary) you must contact your client in order to discuss this new information and request that they provide you with any evidence of these dates, such as an appointment letter, a letter of dismissal, and so on. This may be evidence that you can produce to the respondent or the ET at the hearing.

In addition you must decide whether this is information which will change the whole nature of your case. In many circumstances, the dates of employment are crucial, in particular when you have a claim which requires qualifying service in order that the ET have jurisdiction to hear it. For example, unfair dismissal claims require one years' continuous service in most cases.

However, in claims taken under the Race Relations Act 1976, no qualifying service is required and in this case you could merely request the ET to allow you to amend the ET1 in order to change the dates.

Claimant's pay details

Check that these details correspond with the information provided by the claimant in the ET1. If they do not (and you have no evidence to the contrary) you must contact your client in order to discuss this new information and request that they provide you with any evidence of their pay, for example, payslips, P45, P60, documentation from the Tax Office, and so on. This information is vital in order to calculate losses when claiming compensation.

Box 4 Unfair dismissal or constructive dismissal

If there is a claim of unfair or constructive dismissal, this section indicates whether the respondent agrees about the details of the pension and any other benefits given by the claimant. If the details are not agreed, the respondent is asked to complete the details it believes are correct.

Box 5 - Response

This box indicates whether the respondent will be resisting the claim and, if so, gives the main particulars of the respondents defence you will almost certainly have to have a further meeting with the claimant to discuss its contents.

Prior to the meeting you should note which facts have been admitted, which facts have been denied and which issues raised in the ET1 have not been addressed. The respondent may have raised a preliminary issue that you may now have to be in a position to address at a pre-hearing review.

The ET3 will raise further questions about the case that the claimant may be in a position to answer. You should think carefully about the information that you now need from the claimant before the meeting as this will save time in the long run.

In addition, the result of the meeting with the client and ET3 itself will allow you to begin identifying possible witnesses for the hearing, along with further particulars, documents and answers to question you may request of the respondent.

You should also compare the information provided on the ET3 with the information provided in any RR65 questionnaire response from the employer. If there are any discrepancies or the respondent has been evasive in his explanations, this may be a ground for further questioning and good evidence to place before the ET at the hearing.

In a case where the claimant claims that they have been dismissed, this gives the respondent the chance to deny or admit that fact.

Denied: If the respondent denies the dismissal, you should contact your client to go over the respondents version of events. If the claimant has made a claim for unfair dismissal, this may be an opportunity to consider whether the claimant in fact resigned. This could lead to amendment of the ET1 to drop the claim of unfair dismissal altogether.

Admitted: If the respondent admits the dismissal you should consider whether there was a fair reason for dismissal and whether a fair procedure was used in order to carry out the dismissal. If the employer has provide written reasons for dismissal or provided such a reason in an earlier RR65 questionnaire you should check to see whether there are any discrepancies in his response.

Box 6 Other information

This box indicates any additional information that is relevant, for example if the respondent employer is disabled and has special needs when attending the tribunal.

Box 7 Respondents representatives details

If this box has been completed any correspondence in connection with the case should be sent to this address.

Once you have had a further meeting with the claimant regarding the ET3 the case will continue as explained below. You should also note that the ET3 is likely to be amended (often more than once) during the initial stages of the proceedings and you should continually check any amendments in light of the above suggestions.

Negotiating a settlement with ACAS

Once the claimant has lodged the ET1, the ET sends a copy to ACAS, who will assign a Conciliation Officer to the case. It is important that you understand and respect the remit of the Conciliation Officer when dealing with ACAS.

How ACAS assist an ET case

ACAS are an organisation independent of the ET that has a statutory duty to attempt to resolve (and prevent) industrial disputes between employee and employer.

ACAS will attempt to provide both the claimant and the respondent with impartial advice and assistance in an attempt to find another equitable way to settle the case, other than going to the ET hearing.

In essence, the Conciliation Officer will act as a neutral and confidential go-between in the case and encourage a fair and swift settlement. The Officer will assist you in establishing the disputed facts of the case by liaising between both parties and will advise on the courses of action open to you. However, they will not be able to provide an opinion on matters such as the merits of the claimant’s case or advice on whether to accept a settlement offer from the respondent or whether to continue the case to ET hearing.

Negotiating a settlement

The respondent may be willing to negotiate a settlement, either as a result of ACAS intervention or through his or her own choice.

As an adviser, you must be in a position to provide your client with information on the pros and cons of settling a case before hearing.

If the claimant is happy for you to proceed with negotiations in order to settle the case early, you must provide advice on the outcome of any settlement whilst remembering that it is the client’s decision whether or not to accept the settlement.

Before advising the claimant on the pros and cons of settling the case, you must understand what they hope to achieve by running the ET case.

They may want their job back, along with an apology for their discriminatory treatment and a guarantee that it will not happen again to them or any other member of the workforce. On the other hand, they may wish to take the case as a matter of principle, to expose the respondent as an employer who adopts racist practices and receive monetary compensation for their loss.

You will be able to advise them whether the settlement or the ET hearing will allow them to achieve these goals realistically.

Deciding whether the claimant should settle the case – some pros and cons

Pros

• Appearing in front of the ET is very nerve-wracking for any claimant and their witnesses. Settling the case avoids this added stress
• The ET case may receive publicity unwanted to the claimant, for fear of damaging employment prospects. Settlement does not carry such a great risk, especially if a non-publicity clause is inserted into the COT3 agreement.
• There is a risk of the ET making an award of expenses against the claimant if it decides that he/she has made ‘vexatious, abusive, disruptive or otherwise unreasonable’ claims or brought a ‘misconceived’ case against the respondent. Settling the case avoids this risk.
• The claimant’s award of compensation in a settlement agreement is not subject to reduction for failure to mitigate his/her losses or contributory fault.
• The claimant may lose the case and settling the case avoids this risk.
• ET decisions can be hard to predict and settling the case early may be financially more appealing to the claimant.
• The claimant – and not the ET - can decide the outcome and level of compensation payable. There are a wide range of outcomes available to the parties to utilise and the award may be more specific to the claimant’s needs.

Cons

• Some offers may be made as 'nuisance'/'economic' settlement to resolve the claim early and save money on legal expenses. The claimant may receive more money if he/she takes the risk of going through with the ET hearing. This is particularly so where the claimant may feel under pressure to settle - either economically or by the respondent - and to accept the first offer made. This is compounded by the threat of an award of expenses being made against the claimant if the case is unsuccessful at the ET hearing.
• It is often difficult to predict exactly what a successful outcome of an ET case would have been and therefore accepting a settlement could mean selling the claimant’s case short of what it deserves in the way of compensation.
• The claimant may not feel that justice has been done if a settlement is agreed and that they have not had their 'day in court'.
• It is likely that there will be no press involvement (particularly if the respondent insists on a ‘confidentiality clause’ as part of the settlement) and if the claimant wished for this then this would not be achieved by settling the case early.
• If the ACAS negotiation is successful
• If the negotiation and agreement between the parties has been achieved without ACAS intervention, the Conciliation Officer is not permitted to take any further action.
• If ACAS is involved in negotiations, the officer will usually draw up an agreement, with help of parties on issues such as wording, on form COT3.

You should attempt to negotiate the best possible wording for the COT3 agreement, and you must keep in close contact with the Conciliation Officer when the document is being drawn up. For example it may be in your interests to seek payment within a specified length of time or to request that a reference be provided as part of the settlement.

The respondent will also attempt to get the best possible settlement. For instance, you should ensure that the respondent does not attempt to minimise the claimant’s legal rights or preclude the claimant from taking any future ET claims against them, which are unconnected with the current case. It is common for the respondent to include a confidentiality clause, banning the claimant from publicising their case. Each case will differ but you must speak with your client to find out which clauses are, or are not, important to them.

The COT3 settlement will be binding on both parties. However, if one of the parties is in breach of the settlement, for example, if its terms are not fulfilled by the respondent and no payment is made, the claimant will be able to continue the case as if the negotiation had not taken place.

ACAS will contact the ET, providing a copy of the COT3 settlement document. As a courtesy, you should write a letter to the ET confirming that the case has settled.

The ET will cancel the hearing of the case and record the settlement in the public register.

You should advise the claimant again on the terms of the settlement and explain the practical implications of this, for example, that a no publicity clause means that the claimant cannot contact a local paper with details of the case and settlement.

If the ACAS negotiations are unsuccessful

The ET case will continue unless a decision to withdraw the case is made.

The RR65 questionnaire procedure

For an advisor running a race discrimination Employment Tribunal case, it is imperative to consider using the RR65 questionnaire procedure to assist your case.

The RR65 questionnaire is sent directly to the employer/respondent either before the ET1 has been lodged with the ET or after this time. Make sure you are aware of the time limits for returning the questionnaire.

The procedure allows the claimant to set out their version of the facts and to ask the respondent relevant questions in connection with his/her alleged discriminatory treatment in order to gather evidence for his/her case or indeed to decide whether or not to run a case at all. Although this procedure is not mandatory it is good practice and can be a good tactic when negotiating with the employer.

It is not essential that the application is made on an RR65 form but it is much easier to use the pre-printed version and good practice for advisors to do so. You can get extra copies of the up-to-date RR65 form from the Commission for Racial Equality, the Employment Tribunal Service, Law Centres and Jobcentres.

You are advised to read the general guidance and the specific guidance for both the complainant (claimant/client) and the respondent before completing the RR65 questionnaire.

Download: RR65 form

Download:  How to use the Questionnaire procedure in cases of race discrimination in employment

Why you should use the RR65 questionnaire procedure

It will not be suitable in every case to use the RR65 questionnaire procedure, however these cases will be few and far between.

For example, you should think carefully about the potential damage to the employer-employee relationship in circumstances where the client is still in employment and consider other possible remedies, such as a letter to the employer stating the problem.

However, we suggested you use the RR65 questionnaire wherever possible in a race discrimination case for the following reasons:

• If the RR65 questionnaire is sent before ET proceedings have commenced, the response to the questionnaire can often either highlight fundamental weaknesses in your client’s case or satisfy the client that no discrimination has occurred. In this case you should advise the client not to proceed with the case or lodge the ET1. In contrast the response to the questionnaire may confirm the strengths of your client’s case and provide a basis for completing the ET1 and presenting the case.
• If the RR65 questionnaire is sent after ET proceedings have been initiated, this provides an opportunity for the claimant to gather crucial evidence about the case. Race discrimination cases are often difficult to prove and the courts have recognised that claimants often have trouble gathering overt evidence of discrimination. Therefore each opportunity to accumulate such data should be taken.
• The response to the RR65 questionnaire will identify at an early stage the facts of the case that have been agreed by the parties and the facts that are in dispute. This will allow you to focus both your and the claimant’s minds on the issues that require to be resolved/argued either before or at the hearing.
• If the respondent does not provide a response to the RR65 questionnaire or responds in an evasive or ambiguous way without reasonable excuse, it is open to the ET at the hearing to draw an adverse inference from this failure/insufficient response. This adverse inference may be that the respondent has discriminated against the claimant.

Although there are other information-gathering procedures in an ET case (such as requests/orders for Further Particulars, Documents and Written Answers to Questions), you should use the RR65 procedure in addition to these procedures as it gives more freedom to request information. There may be an overlap between the questions that you request in the questionnaire and other evidence-gathering procedures, but any overlap of information may eventually highlight discrepancies in answers or weaknesses in the respondent’s case. Further, the respondent may be more likely to respond to the RR65 than to other requests for information as they do not know until the date of the hearing what the consequences of non-compliance will be (i.e whether an adverse inference will be drawn). With the other information-gathering procedures, the ET intimate to both parties before the hearing whether or not they are willing to order the respondent to provide the information requested.

The RR65 questionnaire is a method to apply pressure to the respondent due to the rules about responding correctly to the request and may mean that an early settlement is agreed.

The information, statistics and documents gathered from the RR65 can be used as evidence in the ET proceedings, in particular for cross-examination of witnesses. This evidence may influence the ET’s final decision.

RR65 time limits

Before lodging the ET1 form

The RR65 must be presented to the employer within 3 months less one day from the date of discrimination.

Remember that if the time limit expires on a weekend or bank holiday it is your responsibility to ensure that it arrives with the employer/respondent before this date. Note that the lodging of an RR65 Questionnaire prior to the ET1 does not start the ET process as this is only achieved by the lodging of the ET1 with the ET.

After lodging the ET1 form

The RR65 must be presented to the employer within 21 days from the date that the ET1 was lodged with the ET.

Remember that if the time limit expires on a weekend or bank holiday it is your responsibility to ensure that it arrives with the employer/respondent before this date.

Late questionnaires

It is possible for the ET to grant an extension on this time limit but a written application for an extension should be made to the ET in genuine cases only.

The ET will allow a late application if in all the circumstances of the case the ET considers it appropriate to do so.

You should be in a position to provide good reason why the RR65 questionnaire was not lodged on time and, if it is the case, indicate that the late lodging has not prejudiced the employer. Generally, the longer the delay in lodging the RR65 questionnaire the less likely the ET will be to grant an extension.

Completing the RR65 questionnaire

Completion of the RR65 questionnaire can be crucial for your case. Use the following text as a guide to help you complete it as fully as possible.

Paragraph 1

Details of person to be questioned (respondent) and details of the complainant (the claimant/client)

The details of person to be questioned will normally consist of the address of the regional Head Office of the company or, if the case involves fellow employees/managers who have discriminated against the claimant, the names and addresses of these individuals. If the addresses of individuals are not known, they should be listed c/o the address of the employer. If the case is against a partnership or sole trader it is useful to cite the respondent as an individual ‘trading as’ the partnership or business name i.e. ‘Mr xx t/a xxx Convenience Stores’.

Ensure that the claimant’s personal details are completed fully and accurately. In some cases, the claimant may prefer to be cited c/o your organisation.

Paragraph 2: Details of complaint

If you have completed the ET1 form, the details in this section should be the same as the details completed in Box 6 of the ET1, following the same guidance. If you have not yet lodged the ET1 the following general points may be useful:

• Use a separate piece of paper to detail the complaint.
• You may wish to view both the sample ET1 and sample RR65 questionnaire.
• Be as concise as possible in Paragraph 2, using short sentences and paragraphs and avoid using long sentences.
• Attempt to recount the key facts of the case accurately and chronologically. This avoids giving superfluous information, which in turn makes the RR65 Questionnaire easier to follow for the respondent and ET. Generally you will receive a better response to the questionnaire if these basic points are followed, as the respondent will find it easier to deal in turn with each of the points made in the RR65 questionnaire.
• Relevancy is key to filling out the RR65. Be specific about the information that you provide as this is more likely to prove that the claimant has a case with reasonable prospects of success and can disclose a factual situation for which he/she is entitled to a remedy.
• Only put in a verbatim account of a conversation if it is crucial to the case. In most circumstances the essence of the discussion will suffice and you can lead evidence of the conversation at the hearing.
• Although you should attempt to make Paragraph 2 a brief statement of the claimant’s complaint, you must be careful not to omit important parts of the claim.
• If you have previously served an ET1 on the respondent, you should refer to your file copy and check that the details in this section of the RR65 Questionnaire correspond with the information in the ET1 and also that no important details have been omitted.

Paragraph 3: ‘I consider this treatment may have been unlawful because’

You do not have to complete Paragraph 3. If you do wish to or are unable to, delete the word ‘because’ and leave this section blank.

You may wish to complete Paragraph 3 if you wish to indicate why you think the treatment may have been unlawful discrimination.

This could include details of what kind of discrimination the treatment may have been (such as direct discrimination, indirect discrimination or harassment), and what provisions of the Race Relations Act may make the treatment unlawful.

Paragraphs 4 and 5 (Not applicable: Questions for respondent)

Do not attempt to complete these paragraphs, as this is the respondent’s opportunity to respond to the preceding paragraphs in reply to the RR65 questionnaire.

Paragraph 6: Any further questions for the respondent

This section is vital in terms of gathering evidence for your case and you will often have to attach a separate piece of paper with the questions typewritten. It may be useful to look at the sample RR65 questionnaire for examples of the types of questions that may be used in this paragraph. The following general points may also be of assistance:

Ensure that the questions asked are concise, in order to elicit a concise and relevant answer from the respondent;

Use short questions presented in a numbered order. It is better to have a number of short questions on different facts than to use long questions that cover a multitude of points. In the latter case you will find that the respondent provides a less helpful response.

Do not attempt to fish for mass amounts of information in the hope that it will uncover evidence of discrimination. Ask specific and relevant questions, bearing in mind what you hope to achieve in a response from the employer. The ET is highly unlikely to force the respondent to respond fully or indeed at all to a 'fishing trip' for information.

Do not attempt to carry out cross-examination of the employer – this will be carried out at the hearing. Only request factual information.

Similarly, ensure that the content of questions asked of the respondent is reasonable and that they do not request the respondent to impart excessive amounts of information. Remember what is excessive or unreasonable will differ in each case and often depends on the size and resources of the respondent organisation.

Paragraph 7: Address for reply

It is usual for the claimant/client’s representative to provide details of their address in this paragraph, in order that any reply or other correspondence is sent directly to the representative.

In this case you should delete the words ‘that set out in paragraph 1 above,’ leaving the words ‘the following address’ and completing the relevant address. As far as possible attempt to include the name of the person dealing with the case.

The RR65 should then be signed by either the claimant/client (complainant) or by you on their behalf

Submitting the RR65 questionnaire

The RR65 questionnaire should be sent to the employer at the business address or other respondent (such as an individual) at his place of residence/business address. In the case of a limited company, you should send the questionnaire to registered office of the company. You should refer to the guidance accompanying the RR65 questionnaire for more information on this matter. In addition, it is good practice to:

Do a final check that all parts of the questionnaire have been completed accurately as this may be crucial to the response that you receive.

Ensure that the questionnaire has been signed by the claimant or on his/her behalf.

Take a photocopy of the completed RR65 questionnaire, the uncompleted reply form and the guidance accompanying the RR65 questionnaire and retain on file.

Send the employer an accompanying letter along with the RR65 questionnaire, highlighting the time-limit in which they must provide a response.

Post the RR65, using the Recorded Delivery service (keep this evidence on file) or deliver it by hand, asking the respondent for a receipt to confirm delivery (keep this evidence on file) or send a copy of the RR65 Questionnaire to the ET Office and ACAS (if appropriate).

The respondent’s response to the RR65

If, and when, you receive a response to the RR65 questionnaire you should scrutinise the information that the respondent has provided and arrange a meeting with the client to discuss the matter.

Prior to the meeting you should note which facts have been admitted, which facts have been denied and which issues raised in the RR65 have not been addressed by the claimant/client.

In particular you should consider the following points, which may help you to decide whether to proceed with the case or the direction to take proceedings in the future:

You should think carefully about the information that you now need from the claimant before the meeting as this will save time in the long run.

If you and the client decide to proceed with the case, the meeting with the client and content of the RR65 itself will allow you to begin considering the identity of witnesses for the hearing. For example you may look for any person who can be used as an actual comparator in the case or managers who made key decisions in the claimant’s case.

In addition you should start to consider other information that you may need which can be requested from the respondent in the form of further particulars, documents and written answers to questions.

If you have previously lodged the ET1 with the employer you should also compare the information provided on the ET3 with the information provided in any RR65 questionnaire response from the employer.

You should look for any admission of liability by the respondent or information that will be favourable for your case.

Consider the statistics provided by the employer and whether or not they reinforce the client’s discrimination case.

Be prepared to be flexible and compromise with the respondent. If the respondent replies to the RR65 questionnaire stating that he/she disagrees with the content/amount of questions asked, you may have to consider modifying some of the questions. If the respondent provides an unclear or generalised answer or omits certain information, you should follow-up the respondent’s response by being more specific in your questioning and requesting again the information that you need.

You should press the respondent for a response to the questionnaire by following the matter up with several letters, reminding the respondent of the consequences of non-compliance. However, be wary not to give the respondent an unreasonable time to respond to letters as the ET may not look kindly on this practice! If follow-up letters do not elicit a satisfactory response, you should inform the ET in writing, enclosing evidence that the RR65 questionnaire has been served on the respondent, your attempts to follow up the matter in writing and any response to these requests from the respondent. The ET should be invited to draw the necessary inference from this evidence.

In the event that the respondent does not reply to the RR65 Questionnaire or responds in an evasive or ambiguous way without reasonable excuse, it is open to the ET at the hearing to draw an adverse inference from this failure/insufficient response.

Further assistance

You can find examples of how to complete the RR65 form within the Legal Advice pages of this website.

For an excellent and thorough explanation of how to use RR65 questionnaires (including examples of completed questionnaires for different types of cases), you may wish to purchase a booklet by Tamara Lewis, entitled ‘RRA Questionnaires’ for £6.50 from the following address:

Central London Law Centre
19 Whitcomb Street
LONDON
Tel: 020 7839 2998

Further particulars, documents and written answers to questions

In addition to the RR65 Questionnaire, in discrimination cases you can utilise other information-gathering procedures in order to prepare the claimant’s case for hearing or settlement. These procedures will allow you to decide which facts are agreed or disputed, identify useful witnesses for the case and allow you to focus on the forthcoming ET hearing. In many cases the information uncovered can be a key factor in early settlement of the case. There are three such procedures that you are encouraged to use and it is pertinent that you speak with the claimant when the respondent provides any responses which indicate that the following procedures may be appropriate.

Request for further particulars

A request for further particulars can be used when you need to ask the respondent questions about matters that have already been raised, either in the ET1, ET3 or RR65 questionnaire response.

Further particulars can be used to clarify a vague response, gather more information about certain facts or ask questions that have not previously been answered by the ET3 or RR65 questionnaire.

Further particulars can only be confined to the respondent’s defence to the claimant’s case. However, you should not attempt to cross-examine the respondent, as this is a matter to be left until the hearing.

Request for Documents

A Request for Documents should be used when the respondent holds documentary evidence that will assist the claimant’s case, for example to reinforce or prove a point. Often, if the respondent claims not to have a particular document (for example, an equal opportunities policy) this will also be important evidence for the Employment Tribunal.

Request for Written Answers to Questions

A Request for Written Answers to Questions will be similar to a Request for Further Particulars in appearance, however you are able to ask a much wider range of questions in a Request for Written Answers.

You are not confined merely to the ET1, ET3 and RR65 questionnaire, and can ask any factual questions beyond these documents that will help clarify the respondent’s case.

Drafting a request for further particulars, documents or Written Answers to Questions

It is good practice to make the initial written request directly to the respondent, as he/she will often be happy to provide the information that you require. This will avoid tension between the claimant and respondent and their respective representatives.

You should attempt to make such requests well in advance of the hearing date as responses to Requests often uncover information that requires further investigation

The request should be framed in a schedule, with each point in a numbered order, as the respondent will be able to respond more easily to each point in this way. This may save you from making further requests for overlooked or incomplete information in the long run. If the request is presented in this way it is also easier for the ET to deal with an Order for Further Particulars/ Documents/ Written Answers to Questions

It is normal to give the respondent 14 days from receipt of the request to respond to the request. If you receive no response within that time frame you should write a follow-up letter, depending on the proximity to the hearing date. If, after this time you still do not have any response, you should ask the ET for the relevant Order.

Make sure that a note of the time limits, for example, 14 days, are kept in your diary so any follow-up work can be carried out without delay.

You should ask only for information/documents that are necessary for and relevant to the claimant’s case. Be reasonable in your requests – do not ask for mass amounts of information, or go on 'fishing trips' for information, as you will more often than not be met with a negative response.

If you are requesting confidential documents you should consider at this stage whether there is a way to protect the identity of individuals who are not taking part in the ET proceedings. For example, in the case of a request for documents on a workforce’s redundancy criteria grading, confidentiality may be retained by substituting numbers/letters for other worker’s names whilst allowing the grading to be viewed in comparison to that of the claimant’s.

You should only ask for documents that exist and the respondent cannot be forced (through an Order for Recovery of Documents or otherwise) to produce documents that are not in existence.

Orders for Further Particulars/Recovery of Documents/Written Answers to Questions from the Employment Tribunal

If the respondent does not respond to your request(s), you should write to the ET requesting that they serve an Order for Further Particulars/Recovery of Documents/Written Answers to Questions on the respondent. This is a discretionary power and the ET will only make an Order if they are satisfied that it is appropriate.

Your written request for an Order for Further Particulars/Recovery of Documents/Written Answers to Questions should be made well in advance of the hearing in order that the respondent has a fair amount of time to respond.

You should provide the ET with a covering letter, explaining that you have contacted the employer in order to get the request dealt with without the assistance of the ET and provide evidence of them not responding/not replying adequately. You should enclose a copy of all correspondence between both parties on the matter for the ET’s information.

If the Request has been well drafted, it will be easier for the ET to transfer this into an Order. However, the ET may decide to have a pre-hearing review to decide whether or not the Order should be made (see section on Types of Hearing for more information).

It is important to show the ET that you have asked for reasonable information/documents that are relevant and necessary for identifying the issues in the case and a fair ET hearing. The ET will not make an Order where the request has been an attempt to cross-examine the respondent or force him to produce evidence that will be dealt with at hearing. The ET will take into account whether the absence of the information or documents would damage the case or cause the case to be adjourned, thereby utilising all parties’ time, money and effort.

If an Order is granted the respondent will usually be given 14 days to respond to an Order. However, the ET sets the time limits and a shorter period of time may be given if the hearing is approaching.

If the respondent does not respond to the Order for Further Particulars/Recovery of Documents/Written Answers to Questions, the ET has the power to strike out all or part of their claim or make a costs order in the claimant’s favour. However this power is not often used and the respondent will be given an opportunity to explain the ET reasons for non-compliance.

Responding to a request for Further Particulars/Documents/Written Answers to Questions from the respondent

You must be aware that, unlike the RR65 questionnaire procedure, the procedures to request Further Particulars/Documents/Written Answers to Questions are also open to the respondent to use.

Therefore, you should expect to receive such requests and may find the following information helpful in dealing with your response:

If there is any information that you are unsure of the answer to or documents that the claimant holds or may hold you must have a meeting with the client in order to answer the request fully.

Unless you have genuine objections to the information/documents sought after by the respondent, you should attempt to respond within time limit set.

If you have any objections to the information/documents requested, inform the respondent as soon as possible, do not merely ignore the correspondence.

Be very aware of time limits if you receive an Order from the ET. If you have objections to the information/documents ordered to be given or produced, inform the ET immediately.

You should not leave out evidence that will come out at the hearing. Similarly, you should not omit to provide information that you wish to rely on at the ET hearing – this could damage the credibility of the claimant and your reputation.

Take a copy of any response sent to the respondent and always retain the original copy of any documents that the respondent requested.

By this point, you should have gathered a fair amount of evidence using the procedures described on the previous pages.

From that information, you will now be in a position to identify the important witness(es) in your case – if any – and to decide which evidence will be important to lead before the ET. Further preparation at this stage will involve gathering all relevant case law and working out a rough idea of the compensation the claimant will be due if the case is successful.

Witnesses

In discrimination cases, the claimant will normally be the most important witness that you have, and in some cases may be the only person that can speak to the claimant’s case.

You should look carefully at the evidence that you have gathered up to this point as it is difficult to generalise about the witnesses that will be favourable to the claimant’s case; the identity of witnesses will be specific to the claimant’s case.

However, there are some general points that you should note when dealing with witnesses, including the claimant themselves:

Arrange to interview witnesses as far in advance of the hearing as you can. Write to them requesting that they attend a meeting to discuss the claimant’s case.

Speak with witnesses as early as possible and intimate that they may be important for the hearing. This will give them the opportunity to arrange time off work if necessary and gives them time to mentally prepare themselves for the hearing. Speaking to witnesses as soon after the event as possible means that they are likely to remember more crucial details that could help the claimant’s case.

When interviewing witnesses, take time to talk at length about the relevant incidents and take a lengthy statement from them. It may be worthwhile asking them to sign the statement to highlight the gravity of the proceedings and their involvement. This will also allow you to prepare a rough set of questions for the hearing that you can amend up until you examine the witness at hearing.

Think carefully about whether you are confident allowing the witness to be questioned at the hearing, by you and by the respondent and ET. In the case of the claimant you will not have any choice, as they must speak to their case but other witnesses may do more harm than good to the outcome of the case. Will the witness say that discrimination did not occur and give another explanation for the respondent’s behaviour?

Consider the value of the witness’s evidence - did they see incident or are they speaking on the basis of hearsay? Just because someone did not see the incident does not mean that he/she is not an important witness. Indeed, he/she may be your only witness evidence over and above the claimant. Nevertheless, you should not bring a witness with very weak evidence to the hearing or bring too many witnesses to speak to the same point, especially if the point is not disputed.

When you have decided to bring a witness to the hearing explain to him/her about reclaiming expenses from the ET for travel, lost wages, etc, directions to the ET and answer any questions they may have about the hearing. Recognise that they may be nervous and be prepared to allay any fears they may have.

If a witness is unwilling to speak with you about the claimant’s case then you may need to take further action. However, be aware that if a witness is unwilling to attend the ET hearing voluntarily they may not be helpful to the claimant’s case. Only take further action if you are sure that you need the person present.

If you are concerned that a crucial witness may not attend the hearing voluntarily, you should consider asking the ET to serve a Witness Order on the witness. You should write to the ET explaining why the witness’s evidence is relevant and crucial to the claimant’s case and why they are unwilling to attend voluntarily.

You should include any correspondence that you have had with the witness requesting them to attend the hearing voluntarily and their response. Generally, the ET will only grant a Witness Order where you can prove that you have requested the presence of the witness a reasonable amount of time before the hearing, usually at least 48 hours before the hearing. If, during the hearing, it is evident that a person would be crucial for your case you are able to apply for a Witness Order at that time.

If the Witness Order is granted, it compels the witness to attend the hearing. If the witness does not attend they are at risk of receiving a fine for their non-attendance.

Begin to think about the witnesses the respondent may bring and speak with client and other witnesses about what they may say.

Anticipate questions that the respondent will ask the claimant’s witnesses and what you may wish to ask the respondent’s witnesses.

Weighing up the evidence

At this time you should be looking at the sufficiency and relevancy of the evidence that you intend to lead at the hearing. Ensure that the evidence is likely to provide sufficient details of the claimant’s stated case and can disclose a factual situation for which he/she is entitled to a remedy.

Think about whether the claimant has provided you with the evidence that you have requested and whether there is anything else you require from them that has arisen through your case management.

Ensure that you have fully discussed all of the relevant points arising from the ET3, RR65 Questionnaire and responses to Requests/Orders for Further Particulars/Recovery of Documents/Written Answers to Questions with both the claimant and any witnesses that will be attending the hearing.

If there is any evidence that you have not asked the employer to provide or anything that the employer is withholding you should ask the employer to provide this at this time or make a note that this information has not been given to you before the hearing. If the employer attempts to lead evidence at the hearing that he/she has withheld up until that point you should make the ET aware of this fact and possibly ask for an adjournment to consider the new information.

Case law

Case law is not always a necessary part of an ET hearing and it is not mandatory that you refer to previous court or tribunal decisions.

However, as discrimination cases are often complex it may help all parties if there is a recent case that provides a benchmark decision in a similar case and often this can facilitate an early settlement.

If the claimant’s case rests on a particular point of law, case law from the most authoritative court possible will be good evidence to lead before the ET. If you wish to refer the ET and respondent to case law at the hearing, you should ideally include a copy of the relevant case(s) in the claimant’s documents bundle and a list of those cases.

The cases that are relevant to the claimant’s case will depend on each individual action and you may find it helpful to refer to Industrial Relations Law Reports, Industrial Case Reports and Equal Opportunities Review amongst others.

Compensation for financial and non-financial loss

Before the hearing, you should attempt to calculate the amount of compensation that the claimant is seeking at the ET.

Compensation in discrimination cases is not punitive, but is designed to compensate the employee for the discrimination that they have suffered.

There is no limit to the amount of compensation that the ET can award but you may wish to look to recent and authoritative case law to gauge how similar cases have been treated in the past.

The following basic heads of compensation should be claimed in most cases:

Financial loss

You should consider the claimant’s past and future financial losses.

Only financial loss attributable to the act of discrimination should be included, for instance loss of wages, reduction in wages, loss of specific benefit, etc.

You will be expected to provide evidence of the loss, therefore you should ensure that the claimant has provided you with such evidence, for example, payslips showing reduction in wages, evidence of benefits claimed following loss of job, and so on.

The claimant will also be required by the ET to prove that they have attempted to mitigate their losses, by finding or attempting to find a new job.

If the claimant is not in employment it will be important for proof of any application forms sent to employers, details of interviews and any responses to be shown to the ET.

Future losses are more difficult to calculate and you may require assistance with this. The financial loss for the individual claimant should be calculated as a net figure after deduction of tax, any state benefits received or wages earned.

Non-financial loss

This will include any injury to feelings and injury to health that the claimant has suffered as a result of the discrimination. Again, evidence of the injury will be important and in most cases medical evidence is required. This may in some cases include psychological injury.

Interest

Interest will be payable on losses from the date of discrimination until the date of the hearing. You should contact the CRE for more detailed information on calculating compensation.

Once you have calculated the amount of compensation that the claimant will be claiming you should ensure that this is kept up-to-date until the hearing takes place by incorporating any continuing loss into the figure. When preparing the claimant’s documents bundle for the hearing it is helpful to the ET and respondent if you include a schedule of compensation sought.