Initial stages 

On this page

• The initial interview
  
• Statutory grievance procedures
  
• Time limits
  
• Deciding whether or not to proceed with the case
  
• Free assistance
  
• Costs
  

The initial interview

This is information that you may wish to pass on to the claimant prior to an initial interview, so that they can make an informed decision about who can advise and assist with their problems.

The following points should be remembered when conducting the initial interview with the client.

Explain to the client what form the initial interview will take and why you need to ask various questions. This will avoid the client feeling that questions are being asked to disprove his/her story rather than to test the strength of his/her case.

The following details are essential for good case management and for completion of the ET1:

• Name and address of client, including mobile/alternative telephone numbers. If a work telephone number is provided clarify whether it can be used in order to contact the client by this means.
• The racial origin/group of the client.
• The name and address of client’s employer and place of work, including the head office name and address (if different). If the client works for a small company, take the names of the owner or directors.
• If the employer is insolvent, the name and address of the insolvency practitioner dealing with financial matters.
• Name and contact details of the person or persons who have carried out the discriminatory acts.
• Dates of employment including any breaks in continuity of service.
• Date(s) of the discriminatory act(s).
• Effective Date of Termination (EDT), if applicable. This is the date that the client was dismissed or resigned from employment in the case of constructive dismissal. If notice was given on dismissal/resignation, the EDT is the date when the notice expires. If no notice was given, the EDT is the date that the termination takes effect.
• Job title.
• Basic hours worked per week, and pay.
• Overtime hours worked per week, and pay.
• Details of any bonuses or benefits.
• Take-home pay.

More information on the case can then be sought, which may include the following:

• Take a full statement about the suspected discriminatory treatment – try to identify the act complained of.
• Identify whether the suspected discriminatory treatment is within the scope of the Race Relations Act, and what legal issues are raised.
• Check whether or not the client has complained previously of discriminatory treatment to their employer, for instance during a disciplinary hearing or informally, as there may be grounds to include a claim of victimisation. If this is the case, seek more information on this previous complaint including the dates of the complaint(s), reaction of the employer and the action taken on the matter.
• Check whether the client has followed the employer’s grievance, disciplinary or dismissal procedures which are compulsory and came into effect on 1 October 2004. If the parties have not followed the procedures yet then a claim will not be able to be commenced in the ET. See Statutory grievance procedures below.
• Check details of any other possible claims in conjunction with discrimination claim, for example, unfair dismissal - including constructive dismissal - breach of working time regulations, or discrimination on the grounds of sex or disability.
• Check whether any pay is outstanding from employer, including holiday pay and minimum wage payments.
• Take information on the circumstances surrounding the dismissal or resignation, including whether correct procedure has been followed, for example, contractual provisions followed, required notice given, appeal permitted, and so on.
• Check any reasons given for dismissal or other treatment.
• Check whether the claimant has been actively seeking new employment and evidence of the same. If they have found new employment, provide details of their new levels of pay and benefits.

Statutory grievance procedures

Since the introduction of the Employment Act 2002 (Dispute Resolution) Regulations 2004 ('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. 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.

You will need to be aware of  the following points:

Note of employer’s disciplinary and grievance procedures

When a person starts work with a new employer, they must give the person within two months of starting, a written statement of employment particulars including a note of the employer’s disciplinary and grievance procedures. In particular, the note must set out any disciplinary rules which apply to employees and tell the employee who they should go to if they have a grievance.

Written statement of grievance and first meeting

The Dispute Resolution Regulations state that if someone has a grievance, they are required to send a written statement of it to their employer. The employer must then arrange a meeting to discuss the grievance.

The complainant has a right to be accompanied to this meeting by someone who works with them, or a trade union official. The meeting must be held at a time and place which are reasonable for the complainant, and anyone accompanying them.

After the meeting the employer must tell the complainant what he or she has decided. If they do not agree with his or her decision, the complainant has a right of appeal and the employer should inform them of this.

The appeal

If the complainant feels that the grievance has not been satisfactorily dealt with, they should tell their employer that they are going to appeal. He or she must arrange another meeting to discuss this and the same rules apply to this as the original meeting. If the complainant does not appeal, but commences a claim in an employment tribunal, any compensation they are awarded may be reduced by between 10% and 50%.

After the appeal meeting the employer must tell the complainant what he or she has decided and that is their final decision. If the complainant is still not satisfied with the way they have been treated, they can commence a claim in the employment tribunal.

Raising a grievance after a job has been left

If the complainant has left a job, but still has an outstanding grievance, it can pursued using a shorter, two-step procedure known as the modified procedure if:

• both the employer and the complainant agree in writing to use the modified procedure
• the employer did not know about the grievance procedure or the procedure was either not started or was started but not completed before the complainant left the employment.

The two steps are:

• a written statement of grievance should be sent to the former employer
• who then writes back answering the points that have been raised.

Consequences of not following the statutory grievance procedures

If  the procedure have not been followed, it could have serious consequences:

• unless the grievance has first been put in writing, and at least 28 days have passed, as a general rule the complainant will no longer be able to make a claim in an employment tribunal, unless the grievance is about dismissal;
• if the grievance, disciplinary or dismissal procedures have not been followed before the case goes to tribunal, the tribunal will decide whether it is the fault of the employer or the complainant. If it is found to be the latter, any money awarded will normally be decreased by at least 10% and possibly up to 50%. If it’s the employer’s fault, any money awarded will normally be increased in the same way.

Note down important dates, including the Effective Date of Termination (EDT), and be aware of time limits at all times.

Time limits

Remember that the client normally has 3 months less one day from the EDT or last date of discrimination to lodge an ET application. 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.

Examples:

If the client was dismissed on 2nd July 2004, application to ET (ET1 form) must have been lodged by 1st October 2004. The statutory grievance procedures do not apply to dismissal action taken before 1 October 2004.

Where the last act of discrimination occurred on 24th November 2004 and the statutory grievance procedures are applicable to the employer and employee, the ET1 form must be lodged by 23rd May 2005.

If there are earlier dates, the application should aim to be lodged within 6 months less one day of as many of these as possible, if compensation is to be sought specifically for these incidents.

Identify whether you will require the assistance of an interpreter and arrange this immediately if necessary.

Make the client feel comfortable speaking with you – recognise that they may be in an emotional state and know how to deal with this.

If the client has not identified any discrimination element in the treatment they have received, ask direct questions about the possibility of race discrimination having occurred, or contributed to the employment law issue presented to you.

Stress that discrimination is a serious and unacceptable issue.

Remember that it is the claimant’s predicament and therefore the claimant’s case. The client makes the ultimate decision whether they wish to proceed further with the case so make it clear that you will not set the wheels of the case in motion or contact the employer until you have their approval.

Deciding whether or not to proceed with the case

Following the initial interview, you should be in a position to decide whether or not you can or should proceed with the case. This decision should be made as soon as possible.

Not proceeding with the case

You may have been informed by the client that they have not commenced the statutory grievance procedures or that those procedures are yet to be completed. In either case it will be premature to proceed with the case at that time.

You may also reach this decision if you do not feel that you have the sufficient expertise or are overwhelmed with other cases. If so, you should consider referring the client on to another party and include this in your letter.

If the case has no merit you should still inform the client of their right to seek alternative help.In either instance, you should:

• Inform client immediately in writing
• Clearly state your decision not to proceed

Remind them of the time limits that they require to comply with, that is, if the statutory grievance procedures are applicable, they have six months less one day from the date of discrimination to lodge a claim.

Inform them that they have the option to seek further advice from another source.

Proceeding with the case

You may decide that you are willing and able to deal with the case.

At this stage you may wish to arrange a further interview with the client, or make a telephone call to them, so that you can help them decide whether they are willing to proceed with the case.

It is important that both client and adviser are willing to run the case and you should attempt to be impartial when advising your client on the best option for him or her.

You should be able to discuss the pros and cons of taking an ET case against an employer, remembering that there are time limits to adhere to. The following points may be helpful:

Proceeding with a case - the pros and cons

Pros:

The Race Relations Act 1976 provides for protection of the claimant and their witnesses against future victimisation. It is unlawful to victimise or treated less favourably anyone who participates in or makes a claim of race discrimination. If this happens, they should seek further advice on the matter.

The claimant may receive an award that he/she feels adequately compensates for their treatment, for example monetary compensation, publicity for their case, a reference, or a recommendation to be interviewed.

The claimant’s case may deter not only the respondent but also other employers from carrying out similar discriminatory treatment.

Cons

Cases involving race discrimination are notoriously difficult to run.

Risk of damage to employee/employer relationship if the client is still in employment with the same employer.

Possibility of publicity surrounding case and affecting future employment relationships.

The client may not achieve outcome they want, for example, an apology or justice, and may remain aggrieved even if case is ‘successful’.

Risk of a costs being made against them for making ‘vexatious, abusive, disruptive or otherwise unreasonable’ claims or bringing a ‘misconceived’ case

Once you and the client have made the decision to proceed, confirm this immediately with the client in writing. Advise them to gather together all relevant documentation/information and forward as soon as possible. This is likely to include:

• Written terms and conditions
• Staff handbook
• Equal opportunities policy
• Disciplinary and grievance procedure
• Payslips
• Written warnings

Any letters from employer connected with the relevant events.

Applications for other employment and any responses received

Details and proof of any state benefits received, such as Job Seekers' Allowance and Disability Living Allowance during the period of unemployment connected with the dismissal.

A balance should be struck in this letter between stressing your support for the claimant’s claim, and making them aware of the risk of costs being awarded against them by the ET.

How will the costs of running the case be met?

Once you have decided to proceed with the case, the claimant should be informed about how the costs of running the case can be met.

Your organisation may provide free advice and assistance for the case, but the claimant should also be made aware of the following options.

Free assistance

Frequently, organisations such as law centres, citizens advice bureaux and some voluntary organisations are able to provide assistance with ET cases at no cost.

If the claimant is a member of a trade union they may be entitled to free advice and/or representation from the union. It may, in some cases, pay for legal representation by a solicitor or advocate.

If the case is being brough in Scotland, although pro bono work is not commonplace, you may be able to find a solicitor willing to represent a claimant at no cost.

Legal aid

Solicitors will require payment for work done in connection with an ET case. However, depending on financial circumstances you may be able to apply for two types of Legal Aid to cover some or all of the cost:

The first is advice and assistance (A&A), which covers basic initial advice to client

The second is advice by way of representation (ABWOR). This covers representation for ‘complex’ Employment Tribunal cases

For more information, contact the Legal Services Commission or the Scottish Legal Aid Board - these organisations are listed under the Links section of this page.

Self-representation

The claimant also has the option to prepare and present an ET case with no outside assistance. This route will involve the minimum cost (postage, telephone calls, travel to ET office, and so on), but will require extra work on the part of a claimant.

Costs

Generally the claimant does not have to pay the respondent’s costs incurred throughout their case preparation and hearing.

However, your client must be made aware at this time of the possibility of a costs order being made against them if they, for example, act ‘vexatiously, abusively, disruptively or otherwise unreasonably’ or if the bringing of their case is ‘misconceived’.

You should be in a position to explain that if they are not being honest about their version of events or if the case is not likely to succeed then they are in danger of having costs awarded against them.

Having decided to proceed with the case you must continually evaluate the evidence to decide whether you are in danger of breaching this rule. However, if the complaint is reasonable and the case properly conducted, the claimant should not be at risk of a costs order against them.

In situations where the claimant has decided not to be legally represented, The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (“the Employment Tribunal Regulations”) introduced a new power for the tribunal to make 'preparation time order' against the claimant. This does not include any time spent at any hearing, but does include any preparation work done which is directly related to the proceedings. Similar considerations will apply in relation to costs orders as to whether a tribunal will make preparation time order.