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Defending an Employment Tribunal Discrimination Claim
Strategic Defence Against Discrimination Claims
Respondent Focus with Draft ET3
As an employer (Respondent) facing a claim under the Equality Act 2010 (EqA 2010), a robust defence requires a clear legal strategy and meticulous attention to detail. Discrimination claims carry the potential for unlimited compensation exposure and significant reputational risk.
Our strategy focuses on leveraging core legal defences and procedural rules defined by the EqA 2010 and employment case law to achieve the best possible outcome.
I. The Legal Framework: Claims We Defend
The EqA 2010 prohibits discrimination, harassment, and victimisation in employment. Claims are defined by reference to nine protected characteristics, including age, disability, race, sex, and religion or belief. Understanding the precise nature of the claim is the first step in building a successful defence.
Type of Claim
Direct Discrimination (Section 13)
Occurs where an employee (B) is treated less favourably than others because of a protected characteristic. Defence is typically factual, showing the treatment was for non-discriminatory reasons. Direct discrimination generally cannot be objectively justified, except in cases involving age discrimination.
Indirect Discrimination (Section 19)
Involves applying a provision, criterion, or practice (PCP) that disadvantages a group sharing a protected characteristic and also disadvantages the claimant. The key defence is objective justification.
Harassment (Section 26)
Unwanted conduct related to a protected characteristic that violates B's dignity or creates a hostile, intimidating, or offensive environment. Harassment can also be based on association with someone who has a protected characteristic, or a perception that the employee has one.
Victimisation (Section 27)
Occurs when an employee is subjected to a detriment because they have done, or may do, a "protected act" (e.g., giving evidence in discrimination proceedings or alleging a contravention of the EqA 2010).
II. Core Defences Utilising Case Law
To defend against liability, employers often rely on specific statutory exceptions and judicial precedents.
1. Objective Justification (The Proportionality Test)
This defence is central to indirect discrimination claims, direct age discrimination, and discrimination arising from disability claims. The burden is on the employer to prove justification.
The requirement
The employer must demonstrate that the discriminatory action (the PCP) is a "proportionate means of achieving a legitimate aim".
Legitimate Aim
The aim must align with a genuine business need.
Proportionality
The tribunal must conduct a balancing exercise, evaluating whether the employer's legitimate business needs outweigh the discriminatory impact on both the workforce and the claimant.
Crucial Case Law
In Hardys & Hansons plc v Lax , the court established that the tribunal must reach its own decision on justification; it should not afford the employer a "margin of discretion" or apply the "band of reasonable responses" test used in unfair dismissal cases. The employer must also demonstrate that their aims could not reasonably be achieved by less discriminatory methods.
2. The "All Reasonable Steps" Defence (Vicarious Liability)
Employers are liable for discriminatory or harassing acts committed by their employees "in the course of employment," even if the act was done without the employer's knowledge or approval (vicarious liability).
The Defence
An employer can avoid this liability if it can show that it took "all reasonable steps" to prevent the employee from doing the discriminatory act.
Policy and Training
An employer’s ability to rely on this defence is enhanced if they have an equal opportunities policy that is implemented with proper training and publicity, and if appropriate action is taken when breaches occur.
Individual Liability Warning (Baldwin v Cleves School)
Note that an individual employee who commits a discriminatory act can still face personal liability, even if the employer successfully proves it took all reasonable steps to prevent the act.
3. Occupational Requirements (OR)
In certain situations, direct discrimination may be lawful if the protected characteristic (e.g., sex, race, age) is an Occupational Requirement for the job.
The Requirement
The OR defence is available if, having regard to the nature or context of the work, being of a particular characteristic is an OR.
Justification
The application of the OR must be a proportionate means of achieving a legitimate aim.
4. Defending Victimisation Claims
An employer taking honest and reasonable steps to protect itself in litigation will generally not be liable for victimisation, as established in Chief Constable of West Yorkshire Police v Khan.
III. Procedural Defences and Strategic Preparation
A strong defence starts with the initial procedural steps, including drafting the ET3 (Grounds of Resistance) and challenging the claimant's case structure.
1. Burden of Proof
Defending a discrimination claim involves navigating the two-stage burden of proof:
Stage 1
The claimant must first show a prima facie case (or facts from which discrimination could be inferred).
Stage 2
If the claimant succeeds at Stage 1, the burden shifts to the respondent to provide an explanation that is sufficient to demonstrate that it did not discriminate.
2. Drafting the ET3 (Grounds of Resistance)
When drafting your formal response (ET3), legal advisers should adopt a "more succinct and clear drafting style," moving away from a detailed "narrative".
Case Law Guidance
An employment appeal judge cautioned against narrative style pleadings in C v D UKEAT/0132/19, urging parties to "distil the relevant factual matters to their essential or key component parts".
3. Challenging the Claim: Eligibility and Genuine Intent
The defence should ensure the claimant meets all jurisdictional and eligibility criteria.
Genuine Applicants (Kratzer v R+V Allgemeine Versicherung AG)
In claims of indirect discrimination, the claimant must show they suffered a disadvantage. Case law suggests that a job applicant who applies solely for the purpose of bringing a claim is outside the scope of protection because they have not suffered any genuine disadvantage.
4. Mitigating Compensation Exposure
Should the claim succeed, the employer must be prepared to challenge the claimant's Schedule of Loss.
Duty to Mitigate
The claimant is expected to take reasonable steps to mitigate their financial loss.
Burden of Proof
Crucially, the respondent has the burden of proving that the claimant has failed to take reasonable steps to mitigate their loss. Documentary evidence reviewed during disclosure can be key to this element.
5. Alertness to AI Risks in Preparation
When gathering evidence or authorities, representatives must be aware of the risks associated with relying on artificial intelligence (AI) to support or defend a claim. The case of Harber v Revenue and Customs Commissioners highlighted the serious risk of parties inadvertently citing fabricated, AI-generated authorities.
Strategic Defence Against Discrimination Claims
Respondent Focus with Draft ET3
As an employer (Respondent) facing a claim under the Equality Act 2010 (EqA 2010), a robust defence requires a clear legal strategy and meticulous attention to detail. Discrimination claims carry the potential for unlimited compensation exposure and significant reputational risk.
Our strategy focuses on leveraging core legal defences and procedural rules defined by the EqA 2010 and employment case law to achieve the best possible outcome.
I. The Legal Framework: Claims We Defend
The EqA 2010 prohibits discrimination, harassment, and victimisation in employment. Claims are defined by reference to nine protected characteristics, including age, disability, race, sex, and religion or belief. Understanding the precise nature of the claim is the first step in building a successful defence.
Type of Claim
Direct Discrimination (Section 13)
Occurs where an employee (B) is treated less favourably than others because of a protected characteristic. Defence is typically factual, showing the treatment was for non-discriminatory reasons. Direct discrimination generally cannot be objectively justified, except in cases involving age discrimination.
Indirect Discrimination (Section 19)
Involves applying a provision, criterion, or practice (PCP) that disadvantages a group sharing a protected characteristic and also disadvantages the claimant. The key defence is objective justification.
Harassment (Section 26)
Unwanted conduct related to a protected characteristic that violates B's dignity or creates a hostile, intimidating, or offensive environment. Harassment can also be based on association with someone who has a protected characteristic, or a perception that the employee has one.
Victimisation (Section 27)
Occurs when an employee is subjected to a detriment because they have done, or may do, a "protected act" (e.g., giving evidence in discrimination proceedings or alleging a contravention of the EqA 2010).
II. Core Defences Utilising Case Law
To defend against liability, employers often rely on specific statutory exceptions and judicial precedents.
1. Objective Justification (The Proportionality Test)
This defence is central to indirect discrimination claims, direct age discrimination, and discrimination arising from disability claims. The burden is on the employer to prove justification.
The requirement
The employer must demonstrate that the discriminatory action (the PCP) is a "proportionate means of achieving a legitimate aim".
Legitimate Aim
The aim must align with a genuine business need.
Proportionality
The tribunal must conduct a balancing exercise, evaluating whether the employer's legitimate business needs outweigh the discriminatory impact on both the workforce and the claimant.
Crucial Case Law
In Hardys & Hansons plc v Lax , the court established that the tribunal must reach its own decision on justification; it should not afford the employer a "margin of discretion" or apply the "band of reasonable responses" test used in unfair dismissal cases. The employer must also demonstrate that their aims could not reasonably be achieved by less discriminatory methods.
2. The "All Reasonable Steps" Defence (Vicarious Liability)
Employers are liable for discriminatory or harassing acts committed by their employees "in the course of employment," even if the act was done without the employer's knowledge or approval (vicarious liability).
The Defence
An employer can avoid this liability if it can show that it took "all reasonable steps" to prevent the employee from doing the discriminatory act.
Policy and Training
An employer’s ability to rely on this defence is enhanced if they have an equal opportunities policy that is implemented with proper training and publicity, and if appropriate action is taken when breaches occur.
Individual Liability Warning (Baldwin v Cleves School)
Note that an individual employee who commits a discriminatory act can still face personal liability, even if the employer successfully proves it took all reasonable steps to prevent the act.
3. Occupational Requirements (OR)
In certain situations, direct discrimination may be lawful if the protected characteristic (e.g., sex, race, age) is an Occupational Requirement for the job.
The Requirement
The OR defence is available if, having regard to the nature or context of the work, being of a particular characteristic is an OR.
Justification
The application of the OR must be a proportionate means of achieving a legitimate aim.
4. Defending Victimisation Claims
An employer taking honest and reasonable steps to protect itself in litigation will generally not be liable for victimisation, as established in Chief Constable of West Yorkshire Police v Khan.
III. Procedural Defences and Strategic Preparation
A strong defence starts with the initial procedural steps, including drafting the ET3 (Grounds of Resistance) and challenging the claimant's case structure.
1. Burden of Proof
Defending a discrimination claim involves navigating the two-stage burden of proof:
Stage 1
The claimant must first show a prima facie case (or facts from which discrimination could be inferred).
Stage 2
If the claimant succeeds at Stage 1, the burden shifts to the respondent to provide an explanation that is sufficient to demonstrate that it did not discriminate.
2. Drafting the ET3 (Grounds of Resistance)
When drafting your formal response (ET3), legal advisers should adopt a "more succinct and clear drafting style," moving away from a detailed "narrative".
Case Law Guidance
An employment appeal judge cautioned against narrative style pleadings in C v D UKEAT/0132/19, urging parties to "distil the relevant factual matters to their essential or key component parts".
3. Challenging the Claim: Eligibility and Genuine Intent
The defence should ensure the claimant meets all jurisdictional and eligibility criteria.
Genuine Applicants (Kratzer v R+V Allgemeine Versicherung AG)
In claims of indirect discrimination, the claimant must show they suffered a disadvantage. Case law suggests that a job applicant who applies solely for the purpose of bringing a claim is outside the scope of protection because they have not suffered any genuine disadvantage.
4. Mitigating Compensation Exposure
Should the claim succeed, the employer must be prepared to challenge the claimant's Schedule of Loss.
Duty to Mitigate
The claimant is expected to take reasonable steps to mitigate their financial loss.
Burden of Proof
Crucially, the respondent has the burden of proving that the claimant has failed to take reasonable steps to mitigate their loss. Documentary evidence reviewed during disclosure can be key to this element.
5. Alertness to AI Risks in Preparation
When gathering evidence or authorities, representatives must be aware of the risks associated with relying on artificial intelligence (AI) to support or defend a claim. The case of Harber v Revenue and Customs Commissioners highlighted the serious risk of parties inadvertently citing fabricated, AI-generated authorities.