Handling discrimination claims in education: A practical guide

There are a variety of discrimination claims which can be brought in the employment tribunal by individuals including employees, former employees, workers and even job applicants. It is imperative for schools, colleges and universities to understand the different types of discrimination claims they may face, the possible defences available, and the steps to take when responding to such claims. This article provides an overview of these aspects and offers practical guidance on managing discrimination claims effectively.

Types of discrimination claims and defences

There are several different types of discrimination claims that can be brought by individuals. To summarise, these include:

• Direct discrimination. An individual is treated less favourably because of a protected characteristic such as age, disability, pregnancy and maternity, gender reassignment, marriage and civil partnership, race, religion or belief, sex or sexual orientation (even if they are just perceived to have the protected characteristic or based on someone else’s protected characteristic), in comparison to someone who does not have the same kind of protected characteristic, who, by implication is treated more favourably
• An individual is subjected to unwanted conduct which is of a sexual nature or relates to the same kind of protected characteristic (in this case gender) or another kind of protected characteristic such as gender orientation, age or race (even if it is just a perceived protected characteristic or someone else’s protected characteristic) that has the purpose or effect of violating an individual’s dignity or creating an intimidating, hostile, degrading, humiliating, or offensive environment. Or an individual is treated less favourably due to rejecting or submitting to unwanted conduct of, for example, a sexual nature. A potential defence to this claim would be to show that the organisation took “all reasonable steps” to prevent the alleged harasser from doing the discriminatory act or doing anything of that description
• Indirect discrimination. A policy or practice is applied to a group of individuals which causes a particular disadvantage to those with a certain shared protected characteristic. A potential defence to this claim would be to show the policy or practice was a proportionate means of achieving a legitimate aim (the ‘Objective Justification Defence’)
• An individual is subjected to a detriment because is it believed that they have made or will make a complaint alleging discrimination or support a complaint alleging discrimination
• Discrimination arising from disability. An individual is treated unfavourably because of something arising in consequence of their disability (e.g. disability-related sick leave). The organisation would need to have actual or constructive knowledge (knowledge because they ought reasonably to know of a person’s disability from information given to them or they were aware of) that the individual was disabled. A potential defence to this claim would be to show the treatment was a proportionate means of achieving a legitimate aim (the ‘Objective Justification Defence’)
• Failure to make reasonable adjustments. A disabled person is placed at a substantial disadvantage by a policy or practice, such as a physical feature of the organisation’s premises or failure to provide an auxiliary aid and the organisation failed in its duty to make reasonable adjustments to alleviate the disadvantage. The organisation would need to have actual or constructive knowledge that the individual was disabled and likely to be placed at a substantial disadvantage because of their disability.

It is not uncommon for individuals to rely on more than one protected characteristic and bring several types of discrimination claim within one Employment Tribunal Claim (ET claim).

Practical guidance on responding to discrimination claims

For most claims, an individual will need to acquire an ACAS early conciliation certificate before they are able to make an employment tribunal claim. If the individual consents, an organisation should be contacted by ACAS and will also receive a copy of the ACAS early conciliation certificate once it has been issued by ACAS. At this stage, at the very latest, it would be prudent for organisations to notify their lawyers about the potential for an incoming claim and their insurers or indemnity provided by the Department for Education’s Risk Protection Arrangement (RPA Scheme). This will save crucial time when the claim is received and will enable their lawyers to carve out time in their diaries to assist.

Educational institutions should also ensure that they have an internal system for escalating receipt of an ET claim, even outside of term-time. For example, for multi-academy Trusts, it is not uncommon for a copy of the claim form (an ‘ET1’) to be sent to the school against which the claim is made. It is extremely important that the individuals who distribute incoming post are aware of the necessity to escalate the claim to the central office of the Trust at the earliest opportunity. Employers are given 28 days from the date of the notice of an ET claim to submit a defence to the claim (an ‘ET3’). This time will be reduced by the time it has taken for the notice of a claim to be posted and received by the organisation.  Failing to meet this deadline could result in a default judgement being made against the organisation and/or any response to the claim being rejected.

Here is a handy checklist for responding to a discrimination claim.

• Notify RPA/insurers. Upon receipt of the notice of a claim, educational institutions should immediately notify their insurers or the Risk Protection Arrangement (‘RPA’), if applicable. For most policies and the RPA scheme, the indemnity will not respond until a claim has been notified to the claims administrators/handlers
• Notify lawyers. Provide a copy of the claim to your lawyers at the earliest opportunity
• Conduct a thorough review of the allegations to understand the claims being made. A high percentage of claims are prepared by the individual without the benefit of legal advice or assistance. There is a section of the ET1 form which requires the individual to identify whether they are bringing a discrimination claim and to identify the protected characteristic relied upon. However, it may not be explicit within their claim which types of discrimination claim are being brought (e.g. indirect/direct/victimisation) and so it is important to do a careful review of the factual allegations to identify the specific claims to which they give rise, in order to effectively defend against those claims
• Investigate internally. An organisation may have already investigated all or some of the allegations as part of the grievance or appeal (in cases of grievances or dismissals) process (if an individual has unreasonably failed to engage the grievance or appeal process prior to submitting a claim, they could face a reduction in their compensation by up to 25%). In any event, an organisation should conduct any further necessary internal investigation to ascertain the facts and collate all relevant evidence. This will include reviewing documentation such as emails, letters and policies as well interviewing relevant parties
• Prepare the defence. To defend a claim, an organisation will need to prepare an ET3 form and ‘grounds of resistance’. The grounds of resistance (‘GoR’) is a document which is enclosed with the ET3 setting out the facts which an organisation relies on to defend the claim(s). The GoR should set out a detailed response addressing each factual allegation. The legal defence to each claim should be set out clearly and comprehensively including the identification of any jurisdictional issues with the claim(s) (for example, if the claims have been brought outside of the time-limit). Defences should be detailed and respond not only to the claims made other possible claims that could be made by the employee in the course of proceedings. That is why it is essential to engage legal advice to get help with drafting a comprehensive defence, in a way that the Tribunal can understand exactly what factually and legally the employer is relying on in defending the claim
• Consider settlement options. It is prudent for organisations to consider the option of settling at an early stage, particularly if the defence does not have reasonable prospects of success. An early settlement can save time, legal costs and avoid the publicity of a tribunal hearing. However, whether settlement is appropriate or recommended at this stage will be dependent on the circumstances and individual facts of the case.

If you have any queries or require assistance in defending an employment tribunal claim, please contact a member of our employment team.