How to Complain About Sex Discrimination

Employment Claims

The normal time limit within which a complaint about sex discrimination in employment must be brought to an Employment Tribunal is within three months of the act or failure to act being complained of. This means that you should count forward three months from the date of the last discriminatory act, subtract one day, and submit your claim before midnight on that day. The tribunal has discretion to allow claims to be submitted late where in all the circumstances of the case it considers it just and equitable to do so. However, despite the breadth of this discretion, tribunals will often strictly apply the time limits. If you think your claim is out of time, or that it is close to a time limit, you are strongly advised to seek legal advice from a solicitor, local law centre, Citizens Advice Bureau or Liberty caseworker.

In order to submit a claim for discrimination under SDA, employees (but not the broader definition of workers) are required to comply with the grievance procedure set out in the statutory disputes resolution procedures introduced by the Employment Act 2002. This requires you to put your grievance in writing and send it to your employer 28 days prior to submitting your complaint to the tribunal. Your grievance must be submitted to your employer within the normal time limit for submitting a complaint (usually 3 months from the date of the act complained of). If you fail to submit a written grievance prior to submitting a complaint to the tribunal then the tribunal will refuse to consider your case. If you have complied with the statutory grievance requirements then the time limit for submitting your complaint to a tribunal is automatically extended by a further 3 months. This is to enable time for your dispute to be resolved internally.

Normally, on receipt of your grievance your employer will invite you to attend a grievance hearing to seek to resolve the matter. You must take reasonable steps to attend this hearing. You have a statutory right to an appeal and again should take reasonable steps to attend any appeal hearing. Failure to comply with any stage in the grievance procedure could additionally affect your right to compensation by between 10-50%. You have the right to be accompanied by a trade union representative or a work colleague.

Civil claims

Complaints of discrimination in education, housing, public authorities or in the provision of goods, facilities or services must be made to the County Court. Complaints concerning education must first be made to the Secretary of State for Education. If the matter has not been resolved to your satisfaction within two months, you may then proceed with action in the County Court. Complaints about housing, goods, facilities and services must be made within six months of the discrimination taking place.

The court has discretion to extend the time for bringing a complaint of sex discrimination if, in all the circumstances of the case, it considers it just and equitable to do so.

Burden of Proof and Questionnaires

The burden of proof is transferred to the respondent (alleged discriminator) once you have established a prima facie case of discrimination and there is no adequate explanation for the difference in treatment between the sexes.

In both tribunal and court proceedings you can make use of the very useful ‘questionnaire’ procedure as a means of gathering information relevant to your claim. This procedure allows a person who believes he or she has been unlawfully discriminated against to serve a questionnaire on the alleged discriminator asking for an explanation as to the way he or she was treated. In employment tribunal proceedings it should be served within three months of the act complained of (or six months if the statutory grievance procedure applies) or within 21 days of the day a complaint is made to the tribunal. In County Court proceedings it should be served within 6 months of the act complained of. In both cases it may be served later with permission. You can use the questions and replies as evidence in the tribunal.

The alleged discriminator is under no legal obligation to reply to the questionnaire, but if they fail to respond the tribunal or court can take this into consideration when making their decision about the discrimination. In relation to claims for discrimination in employment or vocational training (including that of barristers and advocates) the discriminator has 8 weeks within which to respond. In relation to other types of claims for sex discrimination e.g. provision of goods and services the discriminator should respond within a ‘reasonable period’.

Public Hearings and Publicity

Normally Employment Tribunal hearings are public hearings. In certain circumstances a litigant may apply for an order to protect her identity in the reporting of the hearing or publication of the decision. In cases involving allegations of sexual misconduct, tribunals are able to make a ‘restricted reporting order’ prohibiting publication of any matter likely to enable members of the public to identify an individual affected by, or making, the complaint. In cases where sexual offences are alleged, tribunals are able to order that written decisions and associated documentation do not identify the individuals involved in the proceedings. The position has now been extended by the Employment Appeals Tribunal to situations where an applicant would otherwise be deterred from bringing his or her claim: (X v Stevens (2003)).

Remedies

Where an Employment Tribunal upholds a complaint of sex discrimination it may issue a declaration, order the payment of compensation and / or make a recommendation that the discriminator takes action within a specified period of time to obviate or reduce the adverse effect of the act of discrimination.

The amount of compensation for discrimination is no longer subject to a statutory maximum. The basis upon which compensation is assessed is to put the complainant, so far as possible, into the position that she would have been in had the act of discrimination not occurred. This includes any loss of earnings or other financial loss, an award for injury to feeling and in certain circumstances compensation for personal injury and aggravated damages. Interest is payable on the sums awarded. The award of compensation in relation to unintentional indirect discrimination is more limited and special considerations apply.

Where a County Court upholds a complaint of sex discrimination, the court will normally issue a declaration of rights and award compensation, including damages for injury to feeling. Generally compensation will not be awarded in relation to unintentional indirect discrimination. In addition to the award of compensation the court has discretion to grant an injunction ordering a party to do something or not to do something

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