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Discrimination at work - mediation and conciliation

This advice applies to Scotland

The law which says you mustn't be discriminated against is called the Equality Act 2010. If you've been discriminated against at work, you may be able to take action against your employer under the Act.

If you’ve not been able to resolve your problem by talking to your employer mediation or conciliation may help sort things out.

Read this page to find out about using mediation and conciliation to resolve a discrimination problem at work.

Before you take action about discrimination at work

Before you take action about discrimination, you need to:

  • be reasonably sure that unlawful discrimination has taken place, according to the Equality Act 2010
  • check that you’re someone who’s protected against discrimination at work under the Equality Act - if you're a job applicant, an agency worker or an employee within the meaning of the Act, you're someone who's protected against discrimination.
  • check your time limits for making your claim to the employment tribunal - you have three months less one day from when the discrimination happened to make your claim in the tribunal.

Mediation

You may be able to resolve your discrimination problem by using mediation. Mediation is where an independent and impartial person called a mediator helps both sides reach an agreement. If you want to try to resolve your problem by mediation you will need your employer to agree to it.

Some employers have internal mediation schemes in place. If not, you would need to ask your employer to use an external mediation service. Some mediation services are free of charge, but often you'll need to pay and it can be quite expensive. Your employer may not want to pay for external mediation and may also feel uncomfortable about a workplace matter being raised in front of external mediators.

Mediation can be particularly useful early on in a dispute to avoid things escalating, but it may not always be suitable for you. It depends on your discrimination problem and what it is you want to achieve. It may help you if you want the discrimination against you to stop but you also want to maintain a working relationship with your employer.

Find out how Acas may be able to help you with mediation at

Conciliation

If you can't sort out your problem with your employer, but you have a complaint you could take to an employment tribunal, Acas might be able to help you sort things out using conciliation.

This is where someone from Acas, called a conciliator, works with you and your employer to try to find a solution to your problem. Conciliation can take place before or after you’ve made your claim in the employment tribunal.

Acas conciliation is impartial, confidential, voluntary and free.

Early Conciliation

From 6 April 2014, if you want to make a claim to a tribunal you'll have to notify Acas of your intention to make a claim. Acas will then offer Early Conciliation to try and resolve the dispute before a claim is started. Early Conciliation is not compulsory, but you must always notify Acas of your intention to make a claim. If you don’t want to take part in Early conciliation, or if you don't reach a settlement, Acas will issue you with a certificate and you'll then be able to make an employment tribunal claim.

If you take part in Early Conciliation, this will change the time limit for making a claim to the tribunal; you must make sure that you know what your new time limit will be.

Reaching an agreement

Informal agreements

During mediation or other negotiations with your employer you may reach an informal agreement about your discrimination problem. An informal agreement isn’t legally binding. This means it can’t be enforced in the employment tribunal and you can still take legal action about the same issue if you want to.

Formal agreements

During negotiations or conciliation, you may be able to reach a formal agreement or settlement with your employer. A formal agreement is legally binding. This means it can be enforced in the employment tribunal. It also means you can’t complain to the tribunal about the same discrimination problem.

In addition to compensation, the agreement can cover other things - for example, you can ask the employer to give you a reference.

There are different types of formal agreements, these are:

  • a settlement agreement - this is an agreement where you receive compensation from your employer in return for giving up the right to go to an employment tribunal
  • a settlement reached through Acas - for example, during Early Conciliation.

A settlement agreement must be in writing and you must have received advice from an independent solicitor or other qualified employment adviser before signing it. Otherwise it won’t be binding.

If you reach a settlement through Acas, you'll be asked to sign a legal document called a COT3 form. This is a confirmation of your settlement and records what you and your employer have agreed.

Judicial mediation

Once you’ve started your claim, the employment tribunal may invite you and your employer to participate in something called judicial mediation.

Judicial mediation is a way of resolving a dispute with your employer without the need to go to a full hearing. It’s confidential and is held in private. A trained employment judge acts as the impartial mediator.

If you and your employer can't solve your problem through judicial mediation, your case can go on to a full tribunal hearing. Nothing that was said or done in judicial mediation can be referred to in a full tribunal hearing. The employment judge conducting the judicial mediation will not be involved in the case anymore.

Next steps

Other useful information

Equality Advisory Support Service (EASS)

If you have experienced discrimination, you can get help from the EASS discrimination helpline.

Equality and Human Rights Commission (EHRC)

You can find useful information about discrimination on the EHRC website.

Acas

Acas (Advisory, Conciliation and Arbitration Service) provides free and impartial information and advice on all aspects of workplace relations and employment law.

To talk to an adviser about your employment problem, call the Acas helpline on 0300 123 1100.

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