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7. Maximising the Claim

Released 8th May, 2012|5,119 Views

It is important to include all relevant legal Claims. For example:


      Where the employer’s actions are related to the Claimant’s pregnancy or maternity, the Claim should be made under the Equality Act 2010 as well as under sections 47C or 99 of the Employment Rights Act 1996 and regulations 19 or 20 of the Maternity and Parental Leave etc Regulations 1999 (as applicable). The advantages of using the Equality Act 2010 as well as any other legal grounds are (i) the Questionnaire procedure can be used and a questions form served under the Equality Act (ii) compensation can be awarded for injury to feelings and interest on compensation.
            If the Claimant is an employee with at least one year’s service and has been dismissed, remember that she can also Claim unfair dismissal under the ordinary rules in section 98(4) of the Employment Rights Act 1996. This is a fall-back position if she cannot prove her dismissal was related to pregnancy or maternity.
             Where the Claimant has been discriminated against because of her pregnancy, this may take the form of several actions, eg failure to give appraisals, failure to promote, exclusion from meetings, dismissal. Each discriminatory action can act as supporting evidence to prove other actions were on grounds of pregnancy. But each action can also be Claimed as an unlawful action in itself, provided it is within time-limits, or the tribunal will not allow it in as a late Claim. Don’t overdo this. Many of an employer’s actions will be relevant evidence, but only the key actions should be separate grounds. Precedent 2 paragraph 9 provides an example of how to itemise separate unlawful actions.

       Hostile remarks or abuse can be good evidence to prove dismissal or other detrimental treatment was based on the Claimant’s pregnancy or maternity. Such remarks can also be unlawful actions in themselves if sufficiently serious. They would normally fall under the definition of ‘harassment’.

       Different types of discrimination (direct discrimination, indirect discrimination, harassment, victimisation) may each apply to the same or different actions. For example, an employer’s refusal to permit a female Claimant to work part-time may be indirect sex discrimination (an unjustified rule which disadvantages women) and/or direct discrimination (the employer would have allowed a man to work part-time). Or it may be victimisation, eg the only reason the employer refuses is because the Claimant has upset him in the past by alleging sex discrimination. If the evidence suggests more than one possibility, the Claim can be expressed as ‘direct discrimination and/or indirect discrimination and/or victimisation’. Only do this if there is enough evidence to support each type of discrimination. For example, it may be perfectly obvious that the employer would equally have refused to allow a male worker to work part-time, so the Claim is only for indirect discrimination, not for direct discrimination.
 
      There may be other employment rights which the employer has denied to the Claimant at the same time. These can be added in at the same time, eg 
-   failure to give written reasons for dismissal 
-   failure to give or pay correct notice
-   failure to pay outstanding holiday pay 
-   failure to pay owed wages.

Do not overdo this by adding in all possible Claims, where there is no evidence or the Claim has no financial or practical value. This will make a bad impression on the tribunal.

Box 6 : Setting out redress

Box 6 on the standard form provides a space where the Claimant can set out what redress they are seeking. As the form says, it is purely optional. It is probably best to avoid this paragraph, since it means pinning the remedies down at an early stage and, if something is left out, it may lead to problems later. In any event, the Claimant will soon be required to provide a Schedule of Loss and Remedy.

If the Claimant wants to complete it, the following general statement should cover all or most possibilities:

1.   A declaration that the Claimant has been treated unlawfully.
2.   Compensation and damages as appropriate for the Claims.
3.   (In a sex discrimination case) Recommendations as the tribunal considers
      appropriate.

The main reason to complete the box is if the Claimant wants reinstatement to her job. If so, add that to the list.
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