Race employment tribunal

If you think you have been discriminated against at work and can't resolve your complaint with your employer, either through the statutory grievance procedures or by using the race relations questionnaire (RR65 form), you can commence a claim in an employment tribunal.

A tribunal is similar to a court, although more informal. It hears different types of complaints from employees and has rules and procedures, which must be followed. If you are thinking of taking a case to a tribunal you should seek legal advice.

If you are thinking about commencing a claim, you should also be aware of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2004 (“the Employment Tribunal Regulations”) which came into force on 1 October 2004. These are intended to make the employment tribunal system more efficient, and to streamline procedures. They have, for example, introduced some changes relevant to claimants such as new forms that must be completed and costs orders that may be made.

If your complaint goes to a hearing it will be heard by a panel of three people. These include the chair, who is legally qualified, and two non-legally qualified members, who have experience as employers or union representatives.

What the employment tribunal decides

The tribunal will decide if your employer has discriminated against you. If your case is successful it will also decide whether compensation should be awarded, and if so how much.

You may have other related complaints, for example unfair dismissal, sex, or disability discrimination. These complaints may be heard at the same time as your racial discrimination complaint.

Costs

Unlike when you go to a county court, you do not have to pay a fee to make a complaint to the tribunal. The tribunal does, however, have the option of making the following orders:

Costs orders

In relation to the costs of the proceedings, a costs order may be made requiring a claimant or respondent (employer) to make a payment in respect of costs incurred by the other party, but only where that party is legally represented.

Normally a costs order will not be made if your complaint is reasonably arguable and you have not acted unreasonably in pursuing the complaint.

Preparation time orders

The Employment Tribunals Regulations introduced a new power for the tribunal to make a costs order against a party that is not legally represented. If a party is not legally represented at the hearing, a costs order cannot be made against them but a preparation time order may be made. This does not include any time spent at any hearing but does include any preparation work which is done which is directly related to the proceedings.

Wasted costs order

An order may be made against the representative of a party as opposed to a party themselves. Wasted costs are any costs incurred by a party which are the result of any improper, unreasonable or negligent act or omission on the part of any representative.

Generally speaking, you must make the complaint within three months less one day from the date of the incident you are complaining about. However, where the statutory grievance procedures apply, that time must be extended by a further three months to allow the parties time to attempt to resolve the dispute

The Employment Tribunals Regulations introduced new forms that must be completed by a claimant and respondent indicating respectively the details of the claim and any response. The claim form is called the ET1 (replacing the IT1 that was used prior to October 2004), and the response form is called the ET3. The use of the forms will be compulsory from 6 April 2005, following a six-month transitional period in which both previous forms and the new forms can be used.

The new forms also ask you to provide more extensive details about your complaint. Copies of the claims forms are available from your nearest tribunal office - see the Employment Tribunals Online website.

Making a complaint

Your complaint will be recorded by the tribunal office and you will be sent an acknowledgement letter. A copy of your complaint will be sent to your employer who will have to reply within 28 days. The tribunal will send you a copy of the employer's reply. If the employer does not reply, or the response does not meet the new pre-acceptance conditions, you can apply to the tribunal to issue a 'default judgment'. This means you do not have to have a full hearing of your claim, and the tribunal should proceed to determining what remedies are appropriate.

After making a complaint

ACAS

The Arbitration, Conciliatory and Advisory Service (ACAS) is an independent service which helps employers and employees to resolve disputes at work. The tribunal will send copies of your complaint and the employer's replies to the ACAS regional office. ACAS is there to help you and your employer come to an agreement so that a hearing is not necessary. If you and your employer reach an agreement, it will be legally binding and the hearing will be cancelled. An ACAS officer will normally contact you when details of your complaint have been received.

Under the Employment Tribunals Regulations, there is no fixed period for ACS to attempt to resolve the dispute by conciliation in relation to claims of racial discrimination.

Before the case is heard

Once you have made a complaint you may receive requests for further information from your employer or the tribunal.

You may also ask for further information from your employer, for example if you need clarification of your employer's defence or need to ask other questions about your employer's conduct. These are known as 'Requests for Further and Better Particulars' or 'Requests for Written Answers'. You may also ask for documents known as 'Requests for Discovery'. If you have not already sent a race relations questionnaire to your employer, you should do so within 21 days of sending your tribunal application form.

If you want to call any witnesses, they may attend voluntarily or you may need to get a 'Witness Order' from the tribunal.

You will be sent the date of the hearing at least 14 days before it is due. This is called a 'Notice of Hearing'. It is important to tell the tribunal as soon as possible if you cannot attend.

At least seven days before the hearing you will need to exchange witness statements and documents with your employer.

Types of preliminary hearings

There are different types of hearing that can take place before the full hearings:

'Interlocutory' or 'Directions': to agree certain points, such as the exact issues to be considered, date and length of the hearing and the number of witnesses.
'Pre-hearing review': if your employer (or sometimes the tribunal) believes that your case has no prospect of success or your case is weak, you will have to pay a fee if you decide to carry on to the full hearing.
'Preliminary hearing': if there is a legal point to establish, such as whether the tribunal has the authority to hear your complaint, or if your complaint has been made in time.

The main hearing

Evidence is heard from both sides. You or your adviser will present your case first. You and your witnesses will then be cross-examined by the other side. Your employer will then present their case and you will have an opportunity to cross-examine their witnesses. Each side will sum up. The tribunal can take several days, or even weeks in complex cases. You can represent yourself at the hearing, but the we recommend you have a representative with experience of both tribunal and racial discrimination claims.

After the main hearing

After the tribunal, you will be sent a written copy of the its decision. In some circumstances, if you lose your case you may be able to ask for a review of the tribunal's decision, or appeal to the Employment Appeal Tribunal on a 'point of law', for example.

You have 42 days from the date you received the tribunal's decision to appeal. If you win your case but the tribunal does not make a decision on what compensation you shoudl receive, then a 'remedies hearing' will be held.

Remedies hearing

Often this is separate from the liability hearing and this may involve detailed evidence of what loss a complaint has suffered as a result of the unlawful treatment, such as racial discrimination. You will need to provide details of any loss of earnings or benefits and any other evidence that will help the tribunal decide what compensation you should receive. This may include evidence from doctors or psychiatrists indicating any physical or mental effect the racial discrimination has had on you.

In discrimination claims, compensation may also be awarded for 'injury to feelings' which is separate from and additional to an award relating to, for example, loss of earnings.

How to get help

If you are in a trade union, they can advise you but will not necessarily represent you, particularly if they think your claim is weak.

If you are not in a trade union, your local Citizens Advice Bureau, or other local advice service, complainant aid body, or racial equality council. If you are on a low income you may be entitled to free legal advice. But this will only be available for initial advice about your complaint and not for representation at the hearing.