Equality and Human Rights Commission

f a customer, client, service user, member, associate or guest contacts you to say they have been discriminated against, you will obviously want to find out as much as possible about what has happened.

Consider the information given in this guide.

You will need to make a realistic assessment about whether what you and/or your workers and/or agents have done (or failed to do) amounts to unlawful discrimination, harassment or victimisation.

You may need to conduct an investigation into the complaint in order to form a view.

If you are an employer, and you think a complaint might need you to take disciplinary action against a worker employed by you, the Arbitration and Conciliation Service (Acas) publish guidance on discipline and grievance procedures.

If you feel you need to get more advice on whether what has happened was against equality law, you will find information on places where you can get help see the Further sources of information section. 

If you decide that the person who complained was unlawfully discriminated against, harassed or victimised, you then need to decide the best way to solve the complaint.

If, after investigating what has happened, you decide:

• no unlawful discrimination, harassment or victimisation took place, or
• that you are not responsible for what has happened (see pages [n to n])

then tell the person who has complained.

You do not have to explain why you came to your conclusion, but it may help if you do. For example, they may decide that it is not worth taking their claim to court. 

Good practice tips on solving complaints

Defending a claim in court can be lengthy, expensive and draining, and it can have a damaging impact on the reputation of your organisation.

It is likely to be in everyone’s interest to try to put things right before a claim is made to a court.

If you need to apologise to the person who has complained for the way they were treated or the way something was done, then do this.

If you need to change the way you do things so the same thing does not happen again, then do this.

Also:

• consider equality training for yourself and/or people working for you
• think about having an equality policy. 

The first part of this section assumed you would do all the investigating and negotiating yourself. If you want to get help in sorting out a complaint about discrimination, you could try to get the person complaining to agree to what is usually called ‘alternative dispute resolution’ or ADR. ADR involves finding a way of sorting out the complaint without a formal court hearing.

ADR techniques include mediation and conciliation.

You can find out more about ADR, whether any of the options might be suitable in your situation, what you have to do and how much it might cost from:

• ADRnow, an information service run by the Advice Services Alliance (ASA) if you are in England and Wales, and
• the Scottish Government publication Resolving Disputes Without Going To Court if you are in Scotland.

Details of these organisations are in the Further sources of information section.

Conciliation

The Equality and Human Rights Commission runs a conciliation service as an alternative route to court action. The service is free, confidential and accessible. If the complaint is resolved during the conciliation, it can result in a binding settlement. If it is not resolved, the person complaining still has the option of taking their claim to court. If you want to find out more about this service, contact the Equality and Human Rights Commission helpline. Details of this are on found within the Further sources of information section.

If someone thinks they may have been unlawfully discriminated against, harassed or victimised under equality law, then they can obtain information from you to help them decide if they have a valid claim or not.

There is a set form to help them do this which you can access at: www.equalities.gov.uk, but their questions will still count even if they do not use the form, so long as they use the same questions.  The form is sometimes called a 'questionnaire'.

If you receive questions from someone, you are not legally required to reply to the request, or to answer the questions, but it may harm your case if you do not.

The questions and the answers can form part of the evidence in a case brought under the Equality Act 2010.

If you do not respond to the questions within eight weeks of them being sent to you, the court can take that into account when making its judgment. The court can also take into account answers which are evasive or unclear.

• There is an exception to this. The court cannot take the failure to answer into account if a person or organisation states that to give an answer could prejudice criminal proceedings and this is reasonable. Most of the time, breaking equality law only leads to a claim in a civil court. Occasionally, breaking equality law can be punished by the criminal courts. In that situation, the person or organisation may be able to refuse to answer the questions, if in answering they might incriminate themselves and it is reasonable for them not to answer. If you think this might apply to you, you should get more advice on what to do.

The key points this guide explains are:

• where claims are brought
• time limits for bringing a claim
• the standard and burden of proof
• what the court can order you to do.

Where claims are brought

If you are:

• a service provider, or
• carrying out public functions, or
• an association, including private clubs and political parties, or
• a premises provider, whether you provide housing or commercial premises, or
• in some circumstances, an education provider

then any claim against you that someone has been discriminated against (including that there has been a failure to make reasonable adjustments), harassed, or victimised on the basis of a protected characteristic will be brought against you in the County Court in England and Wales and in the Sheriff Court in Scotland.

If you are a public authority, a person who wishes to claim discrimination may also bring a claim for judicial review in the High Court in England and Wales or the Court of Session in Scotland.

Time limits for bringing a claim

If someone wants to bring a claim of unlawful discrimination, harassment or victimisation relating to equality law, they must bring it within six months of the act that they are complaining about.

If the person is complaining about behaviour over a period of time, then the six months begins at the end of the period.

If the person is complaining about a failure to do something, for example, a failure to make reasonable adjustments, then the six months begins when the decision was made not to do it. If there is no solid evidence of a decision, then the decision is assumed to have been made either:

• when the person who failed to do the thing does something else which shows they don’t intend to do it, or
• at the end of the time when they might reasonably have been expected to do the thing.
  
  For example, a business sells goods over the internet. It is having its website redesigned. It looks into having its website made more accessible to disabled people and decides that doing this is a reasonable adjustment. The new website claims to be fully accessible. However, when the new website goes live, it turns out not to be any more accessible than the old one. The business does not do anything about this. A disabled person writes to the organisation and asks them to bring their website up to the standard they are claiming for it. The organisation does nothing. The time limit for bringing a claim is measured from the time when they might reasonably be expected to have made improvements to the website.

A court can hear a claim if it is brought outside this time limit if the court thinks that it would be ‘just and equitable’ (fair to both sides) for it to do this.
If a claim has been referred within six months of the alleged unlawful discrimination, harassment or victimisation taking place to the Equality and Human Rights Commission for conciliation, the time limit for bringing a claim is increased to nine months.

The standard and burden of proof

The standard of proof in discrimination cases is the usual one in civil (non-criminal) cases. Each side must try to prove the facts of their case are true on the balance of probabilities, in other words, that it is more likely than not in the view of the court or tribunal that their version of events is true.

If someone is claiming unlawful discrimination, harassment or victimisation against you, then the burden of proof begins with them. They must prove enough facts from which the court can decide, without any other explanation, that the discrimination, harassment or victimisation has taken place.

Once they have done this, then, in the absence of any other explanation, the burden shifts onto you to show that you or someone whose actions or omissions you were responsible for (see pages [n to n] for what this means) did not discriminate, harass or victimise the person making the claim.

What the court can order you to do

What the court can order if you lose your case is called ‘a remedy’. 

County Courts and Sheriff Courts hearing discrimination claims can grant any remedy that the High Court in England or Wales or the Court of Session in Scotland can grant for a civil wrong or in a claim for judicial review.

The main remedies available are:

• Damages (including compensation for injuries to feelings).
• An injunction in England or Wales or an interdict in Scotland) – this is an order made by the court to stop a person or organisation from acting in an unlawful way. Sometimes in England and Wales an injunction can be mandatory; that is, you have to do something (for example, you have to change a policy or make a reasonable adjustment). In Scotland an order for specific implement works in the same way.
• A declaration in England or Wales or a declarator in Scotland – this is a statement by the court which says that someone has been discriminated against.

In cases of indirect discrimination, if you can prove that you did not intend what you did to be discriminatory, the court must consider all of the remedies before looking at damages.

The court can also order you to pay the legal costs and expenses of the person bringing the claim. You would have to pay these on top of your own legal costs and expenses.
 

You can find out more about what to do if someone brings a court case against you from:

• In England and Wales: Her Majesty’s Courts Service: See the Further sources of information section.
• In Scotland: Scottish Courts Service:  See the Further sources of information section for details.