Deciding what to do about discrimination at work
If you haven’t already, you should check your problem is discrimination under the law.
It’s usually best to try and solve a problem informally first - especially if you want to keep working with your employer. If that doesn’t work, you can try one of the other ways.
Start gathering evidence as soon as possible. Keep any messages about the problem and write some notes of what happened.
You can solve a discrimination problem in different ways - what you should do will depend on your situation. You can:
- make an informal complaint by talking or writing to your employer
- make a formal complaint to your employer - this is called ‘raising a grievance’
- negotiate with your employer to reach an agreement - this is called ‘settling’
- use mediation - a trained mediator will try to help you and your employer reach an agreement before legal action
- take legal action at an employment tribunal - you should try to solve your problem in another way first
If you don't think you'll be able to resolve the problem, you could also leave your job. If you quit because of discrimination at work, you might be able to claim constructive dismissal.
If you take action about discrimination and are treated unfairly because of it, it's called 'victimisation'. You're protected by the law and can add it to your existing claim.
It’s best to speak to an adviser before you complain - they can help you build a stronger case.
If the problem is affecting your health
You might still need to see the person who’s discriminating against you while you take action. This can be stressful. If your claim affects your health or you're finding it hard to make decisions, talk to your GP.
You could also talk to your family or your union about the problem if you’re stressed.
Check the deadlines
Act quickly because there are strict time limits for taking legal action.
The first step of taking legal action is to contact an independent organisation called Acas - this is called ‘early conciliation’. You have to contact Acas within 3 months less one day from the date you were discriminated against.
For example if you were discriminated against on 13 July, you need to start the process by 12 October.
If your deadline falls at the weekend or on a bank holiday, it’s best to take action on the last working day before the deadline so that you can be sure that your claim is made in time.
The date you were discriminated against could be when your:
- employer made a decision - for example the date they didn’t promote you or refused your flexible working request
- colleague discriminated against you
If you asked for reasonable adjustments it can be hard to work out the date to start counting from. Check how to work out time limits for reasonable adjustments.
If you’ve been discriminated against more than once
You’ll need to work out whether the different incidents could be classed as ‘continuing over a period of time’. This is where they’re linked to each other, for example if your employer uses homophobic language to describe you on several occasions or continues to apply a discriminatory policy to you.
If the incidents are linked, the law calls them a 'continuing series of acts' or a 'continuing act' and time only begins to run when the last act is completed. This is covered in section 123(3)(a) of the Equality Act 2010.
If the incidents aren't linked, they're not part of a continuing series of acts so you’ll have different deadlines for each incident. For example if your colleague made a racist comment and you're sacked a month later because you're pregnant, those incidents might not form part of the same continuing act. You should then use the earliest date as your deadline for each separate incident.
- the last incident is definitely discrimination - if it’s not discrimination and this means you made a late claim, the tribunal could reject your case
- there’s a long gap between the different incidents - if they’re far apart, they might not be one continuing act
If you’re not sure of the date, it’s usually best to use the earliest date. If you use a later date for the deadline, the court could decide that the later incident wasn’t discrimination or that the acts aren’t linked it’s not discrimination and you wouldn’t have time to make a new claim.
Beth was sexually harassed at work on 3 February and raised a grievance about it. On 14 April she and 2 other members of her team were made redundant.
Beth wants to take action about the harassment and her redundancy. She thinks being made redundant was victimisation for raising a grievance, but other people have also been made redundant so it’s not yet clear that there’s a link between the two things.
It would be best for Beth to start early conciliation by 2 May to make sure her harassment claim is made on time. That avoids the risk that the tribunal might decide the redundancy wasn’t discrimination, or that it wasn’t a continuing act of discrimination.
If you’re close to the deadline
If you've got a couple of weeks, you should write a formal letter of complaint to your employer and then start early conciliation.
If you don't write a letter, you might end up getting less money as compensation if you win.
If you’ve missed the deadline
The tribunal might let you take action if they think it’s fair - this is called being ‘just and equitable’. For example, you might be able to take legal action if you’ve found it difficult to take action in time because you were ill.
You shouldn’t rely on this though as the tribunal might decide not to allow a late claim.
The tribunal might consider things like the reason for the delay, the length of the delay and the effect of a late claim on the other side.
Start early concilation immediately as any delay could make it harder to get the tribunal to accept your claim.
Next, you'll need to make sure you have evidence to prove the discrimination happened - if you don’t, you won’t win your case.
The court’s power to allow a late claim is in section 118 of the Equality Act 2010.
If you’ve left or been asked to leave your job
You’ll still be able to take action about the discrimination.
What you should do depends on your situation.
Act quickly to make sure you meet the strict deadlines for complaining and appealing.
If you’re out of work, make sure you keep a note of the wages you’ve lost - you might be able to claim compensation for them.
This includes expenses for finding a new job too - for example, transport costs for travelling to any interviews.
If you’ve been dismissed
You should appeal your dismissal and raise your discrimination in any appeal meetings.
Ask your employer in writing for the reasons you were dismissed. You’re entitled to written reasons for your dismissal if:
- you’ve worked for your employer for at least 2 years
- you’re dismissed because of pregnancy - it doesn’t matter how long you’ve worked for your employer
You should ask even if you’re not entitled
If you’ve missed the deadline for appealing or you’re not appealing, you should complain to your employer directly - either informally or formally.
Check who you need to send your appeal to - you might find this in your dismissal letter, your employer’s handbook or intranet.
If you’re not sure, send it to HR or your line manager. If you’re complaining about your line manager, you can contact their line manager.
If you realised it was discrimination after you left your job
It’s best to talk to your employer informally first and then make a formal complaint if you have time.
Contact the person at your work who deals with grievances - this is usually a member of HR or your line manager. If you’re complaining about your line manager, you can contact their line manager.
Check the deadlines for making a claim - you can still make a discrimination claim to a tribunal if you meet the deadlines.
If you think your employer has given you a bad reference
If you think you’ve been given a bad reference because of your protected characteristic you might be able to claim direct discrimination, but you’ll need evidence to back up your claim. The evidence can be hard to get.
Ask the employer who asked for the reference if you can see it. If that doesn’t work, speak to your current or former employer.
If the reason you’ve received a bad reference is because you’ve complained about discrimination or made a discrimination claim, you can make a victimisation claim. You must make the victimisation claim within 3 months less one day of the date the reference was given.
If you’ve missed this deadline because you didn’t know about the bad reference until more than 3 months after it was given, you can ask the tribunal to allow your claim even though it's late.
Talk to a specialist before you make a claim - they can advise you how strong your case is.
Find out more about what to do if you've got a bad reference.
If you want your job back
You should try to negotiate with your employer as they might agree to give you your job back. A tribunal can’t order your employer to give you your job back if you're only claiming discrimination.
If you want your job back, you might be able to claim unfair dismissal as well and ask the tribunal to reinstate you.
Making an informal or formal complaint to your employer
It’s usually better to make an informal complaint first - this is when you chat to your manager or a member of the HR team about the problem.
If you can’t solve the problem together or you’re not comfortable talking to your employer, you can make a formal complaint by writing a letter to your employer. This called ‘raising a grievance’.
There might be a deadline for raising a grievance - check your contract or your company's intranet or handbook. You could also ask your employer.
You could ask your employer to:
- apologise to you
- make the discrimination stop
- compensate you with money for the impact it’s had - this can include the impact on your mental health or emotions
- change their policies or raise awareness of a discrimination issue
- review their decision - for example, if they dismissed you or turned down your request for reasonable adjustments
- give you a reference if you’ve left your job because of discrimination
If you’re close to the deadline, you can start the tribunal process while you’re waiting for the outcome of your grievance.
If you don’t complain immediately, you might need to explain why to your employer. For example, because you were scared to or you didn't know how.
Trying to reach a settlement
You should try to negotiate with your employer before you go to a tribunal - this is usually the best way to get what you want.
It’s important to remember you might not get the outcome you want by going to a tribunal, so you should try to reach a compromise with your employer.
You can keep negotiating with your employer after you’ve started legal action too.
It’s a good idea to try mediation if you have time. A mediator is a person who doesn't know either side and who's trained to help people resolve disagreements.
Your employer will have to agree to mediation.
You might have to ask your employer to pay for a mediator, but some companies might have their own.
Find out more about mediation on the Acas website.
Going to an employment tribunal
A tribunal is a free hearing that’s less formal than going to court.
It’s best to only take your case to a tribunal if you’ve tried other ways to solve your problem. This is because it can be very stressful and it can take 6 months to a year to get a decision.
Hearings can last for a few days or sometimes a few weeks.
You can only go to a tribunal if you’ve tried to solve the problem through early conciliation with Acas.
Unlike your employer, tribunals can only award you certain things - they can:
- make your employer pay you compensation
- recommend your employer does something, like change a policy or give you a reference - they can’t force your employer though
- make a statement saying your employer has discriminated against you - they’ll explain how the law has been broken
You can still negotiate with your employer if you go to a tribunal - this might be the best way to get the outcome you want.
Think about how strong your case is before you go to a tribunal - if you don’t have enough evidence, you won’t win your case. You could talk to an adviser or pay for a solicitor who can help you do this. You might be able to get free legal help if you’re on a low income or if you don’t have many savings.
Preparing evidence for a tribunal
You’ll need to have more evidence than for an informal complaint or grievance - for example a letter from your doctor about your disability. It also helps if you have witnesses who are prepared to support your claim by answering questions at a hearing.
You can pay for a solicitor to represent you at the tribunal. If you’re on a low income, you might be able to get free or affordable legal help.
You can also represent yourself. You would need to give your own evidence, present your case and ask the other side questions.
You would also need to prepare questions for your witnesses and ask these at the hearing to support your case. You won’t be allowed to ask leading questions - a solicitor is trained not to do this.
Your employer is likely to have representation, for example a solicitor. They’ll be able to ask you questions about your situation at the tribunal.
Before you take action, you need to gather evidence to support your case.