After the hearing

If the claimant was unsuccessful at the hearing, the decision from the ET will state this and give reasons for the decision.

If the claimant was successful at the hearing, the decision of the ET will depend on the specific case but will normally utilise one of the following options in discrimination cases:

Order a declaration of the rights of the claimant, for example, order the respondent to make a simple statement that the claimant suffered discrimination. This can be of great psychological benefit to the claimant and sets standards that the respondent must respect.
Order that compensation, plus interest, be paid to the claimant for financial loss and injury to feelings. The exact amount will depend on the individual case. If the claimant is successful, in some cases there may be a separate remedies hearing after the hearing to determine the liability of the respondent. This is to determine the amount and type of compensation that must be provided to the claimant. If you have any relevant evidence, such as doctors' notes to show that the claimant have been off work sick due to the discrimination, you should provide the tribunal that evidence before the hearing.
Make recommendations that the respondent takes steps to ensure that discrimination does not occur in the future against the claimant or any other employees. For example, the ET may recommend that the respondent implements an Equal Opportunities Policy or makes an apology to the claimant or provides the claimant with a good reference.

There are a number of other possible remedies if the claimant’s claim extended beyond race discrimination.

Notifying the client of an unsuccessful application

You should notify the client as soon as your offices receive the decision from the ET.

If the claimant has been unsuccessful they may wish to discuss the reasons for the failure of the case and this should be done as soon as you receive the extended reasons for the decision from the ET. If there has been an award of costs made against the claimant you should make immediate arrangements to forward this to the ET. It is important that you recognise that the claimant will be aggrieved at the outcome and you should know how to deal with this. In some cases it may be appropriate to ask for a review of the ET’s decision or appeal the decision at the EAT (see section below on Challenging the Employment Tribunal Decision).

If the decision has been positive and the claimant has been successful, you should advise them of the details of any award made in their favour. The respondent will have a certain amount of time specified in the ET’s decision in which to fulfil the terms of the award and the claimant should be informed that if the time limit is not adhered to the decision could be enforced through the Sheriff Court. Diarise the time limit for the respondent’s compliance and follow it up immediately if necessary.

It is imperative at this point that the claimant (and the claimant’s witnesses at the hearing, if appropriate) is aware of the further specific protection afforded to him/her by the Race Relations Act 1976 against future victimisation. The Act makes it unlawful for the respondent to victimise or treat less favourably anyone who participates in or makes a claim of race discrimination. Forewarn the claimant of these provisions and advise him/her to contact you if they wish any further advice on the matter.

Enforcing a decision in favour of your client

If the respondent does not comply with the terms of the award made in the claimant’s favour, you should immediately obtain an extract of the ET decision from the relevant ET Office, advising the ET that you are enforcing the decision on behalf of the claimant. This extract should then be taken to the relevant Sheriff Court, where the Sheriff Officers can enforce the ET decision in the same way that they would enforce a court decree.

The claimant will be entitled to have interest awarded on any amount of compensation, including compensation applicable to the period after the award unless the amount is paid within 14 days of the award being made.

Challenging the ET's decision

Grounds of appeal

There are two ways in which a claimant can challenge the decision of the ET.

Apply for a review of the decision by the Employment Tribunal.

Appeal the decision at the Employment Appeals Tribunal (EAT).

Review of the decision by the Employment Tribunal

You should ensure that an application for review is made in writing, stating the grounds in full, no later than 14 days after the date the decision was sent. The ET itself can also decide to review the decision within the same time scale and will notify the claimant of this intention. There are limited grounds on which a review can be conducted:

The decision was incorrectly made on account of an error by ET staff; or
one of the parties in the case did not receive notice that the proceedings were taking place; or
the decision of the ET was made in the absence of the claimant or a key witness and there was a good reason for his/her absence from proceedings; or
new and crucial evidence has come to light since the end of the hearing, which could not have been foreseen during the hearing itself; or
it is in the interests of justice that a review be conducted.

There is no automatic right to a review hearing. The chairman of the tribunal that made the original decision will initially consider the application. An application for review will not be successful if there is no ground for review, or the ET believes there is no reasonable prospect of the decision being varied or revoked.

If the review application is successful, the same ET members who made the initial decision will normally conduct the full review hearing, however a differently constituted ET can deal with the review if it is more practicable.

The possible outcomes that the claimant can expect at the review hearing are the confirmation or revocation or variation of the original ET decision.

Appealing the decision at the Employment Appeal Tribunal (EAT)

The claimant has 42 days after the ET decision was sent to complete and lodge to the EAT a notice of appeal, together with the extended reasons for the ET decision. The ET will be able to send you a copy of these reasons.

The notice of appeal (Form 1) can be obtained from the EAT offices, or can be downloaded from the EAT website.

The appeal must be on a point of law as the EAT cannot reverse a finding of fact. The claimant is permitted to appeal using one of the following competent grounds of appeal from the ET decision:

a misunderstanding or misinterpretation of the law; or
a misunderstanding of the facts, or that the facts were not applied by them properly; or
a perverse decision on the facts before the ET; or
the ET did not take into account crucial factors or took into account factors that it should not have taken into account.

If the claimant is not satisfied with the decision of the EAT, it is possible to apply for permission to appeal the decision further to the Court of Appeal or the Court of Session, but again this can only be on a point of law.

Who can assist with the appeal?

You may wish to consider whether you require specialist assistance in appealing the claimant’s case at the EAT. An advocate or specialist solicitor may be able to assist the preparation of the case, or you could instruct them to represent the claimant at the appeal hearing.