Challenging Discrimination in the
Employment Tribunal
The process
Presentation for Scottish Trans Justice Conference
Susan Walker
Vice-President Employment Tribunals (Scotland)
The protected characteristic
• Gender re-assignment
• “proposing to undergo, is undergoing or
has undergone a process ( or part of a
process) for the purpose of reassigning
sex by changing physiological or other
attributes of sex”
• Personal and not medical process
• Transsexual person –someone who has
the PC of gender re-assignment
Types of discrimination under the
Equality Act 2010
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Direct discrimination
Indirect discrimination
Harassment
Victimisation
Gender re-assignment discrimination
Direct discrimination
• Less favourable treatment because of
gender re-assignment
• Covers cases of perception and
association
• Claimant need not possess the protected
characteristic
Indirect discrimination
• A practice or provision applied to everyone
but it puts those with a protected
characteristic at a particular disadvantage
• Employer’s defence if it can be objectively
justified
• “Proportionate means of achieving a
legitimate aim”
Harassment
• Unwanted conduct related to a protected
characteristic
• Purpose or effect of
• Violating dignity or creating an
intimidating, hostile, degrading, humiliating
or offensive environment
• Claimant need not possess the protected
characteristic
Victimisation
• Specific legal meaning
• Treated less favourably because you have
made allegations of discrimination or
brought proceedings or given evidence in
proceedings or anything else in connection
with the Equality Act
Gender re-assignment
discrimination
• Special provision
• Absence from work related to gender reassignment should not be treated less
favourably than
absences for sickness or injury or
other absences ( if not reasonable to treat
the absences differently)
What does the Employment
Tribunal deal with?
• Claims relating to “work”.
• Includes recruitment, terms and
conditions, opportunities for training and
promotion, dismissal and some postemployment matters.
• Applicants, employees, contract workers,
office holders, advocates, police officers
• partnerships, employment agencies, trade
unions
Process
• Pre-claim conciliation Acas
• Will be required to contact Acas before
presenting claim from 6 April
• Fees chargeable £250 issue fee and £950
hearing fee.
• Fee remission available
• 3 month time limit
Claim and response
• Called ET1
• Details of claim – doesn’t need to be too
detailed or set out in legal terms
• Tick boxes
• Claim served on respondent
• 28 days to put in a defence
• No defence – may get judgment without a
hearing
Defended claim
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Private preliminary hearing (PH)
Agenda documentation to complete
Guidance provided
At PH, judge will seek to clarify issues and
can discuss restricted reporting,
witnesses, documents etc.
• Judicial mediation
Hearing
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Can arrange to view a hearing in advance
Evidence given on oath or affirmation
Don’t need legal representation.
Can bring someone to support you
Adversarial process – cross-examination –
can be stressful.
• Judge and members will try to ensure
“equality of arms”
Judgment and enforcement
• Will receive a written judgment
• Tribunal may order anonymisation
• If successful , Tribunal may order reimbursement of fees
• Enforcement – if employer doesn’t pay,
enforcement through sheriff officers.
• Fees between £58 and £125.