Challenging Discrimination in the Employment Tribunal The process

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 • • • 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 Ø absences for sickness or injury or Ø 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 ET 1 • 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 • • 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 • • • 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.