Workers have a range of remedies available to them in respect of acts of direct or indirect discrimination by their employer.
The most common area is via an Employment Tribunal where workers who suffer unlawful discrimination, harassment or unequal pay can bring a claim. In order to help prospective claimants to assess whether they have a claim or not, they can serve their employer with a questionnaire. The questionnaire and any replies are admissible as evidence in Employment Tribunal proceedings provided it is served before proceedings have been brought. This also must be within three months of the act being complained of being done, or within 21 days of the date proceedings were started within the tribunal. It is important for employers to note that a tribunal can draw adverse inferences if an employer appears to have deliberately or without reasonable excuse failed to reply within eight weeks beginning on the day on which the questionnaire was served.
The time limit for the presentation of discrimination and harassment complaints is three months from the date that the act or omission complained of was done. However, in relation to equal value claims and equal pay, there is a special procedure in place in view of the significantly more lengthy and complex litigation that normally occurs in these circumstances.
Where an Employment Tribunal finds that a complaint should be upheld, it may apply one of a number of awards that it considers it to be just and equitable in the circumstances, namely:
- A declaration as to the rights of the parties in relation to the subject of the complaint
- Compensation
In discrimination claims, this falls under the heading of either financial loss (loss of earnings and benefits both past and future) and non financial loss (an amount awarded for ‘injury to feelings’ or in certain circumstances, aggravated damages).
In relation to ‘injury to feelings’ the courts have set out three bands of compensation which should be applied in assessing such awards.
- In the lower band for less serious cases - £500 to £6,000
- In the middle band for cases that although serious do not merit an award in the top band - £6,000 to £18,000.
- In the top band for the most serious cases of discrimination, for example where it has taken place over a long period of time - £18,000 to £30,000
However, it is within the tribunal’s discretion to make an award at whatever level they feel appropriate as there is no cap on the amount that can be awarded.
Tribunals may also award aggravated damages where the employer has behaved in a ‘high handed, malicious, insulting or oppressive manner’ in committing the act of discrimination
Finally, in some extreme cases, exemplary damages may be awarded where a servant of the government has acted arbitrarily or unconstitutionally or where the employer’s conduct has been calculated to make a personal profit in excess of any sums which can be paid to the claimant by way of compensation.