Public and Commercial Services Union

Hopefully you will have been able to use the internal procedures to resolve your case to your satisfaction.

If the result is not in your favour you may want to consider continuing your case through the Employment Tribunals. This will depend on advice from PCS, including the likely chance of success.

Where there is evidence that a procedure has been mismanaged which has ultimately affected the outcome of the findings, keep records of the procedural irregularities, as this may assist you at a subsequent ET hearing.

A letter should also be sent to management outlining the procedural irregularities, asking management to explain why they chose to conduct the procedure in a mariner that is contrary to agreed rules.

The outcome of the internal procedure may actually entitle you to appeal against the decision. if this is the case, follow the appeals procedure as set out in the rules.

Proving Discrimination

It can be very difficult for an employee to give evidence that discrimination has occurred.

Often, direct proof will not exist. At an ET, the claimant is required to show that less favourable treatment has occurred. . If so, the 'burden of proof' falls on the employer to prove that the treatment was not for a discriminatory reason.

Informal conversations or hearsay will not provide enough evidence to pursue a complaint.

Quite often when an individual is asked whether they complained about adverse treatment, no tangible evidence is provided to support the claim.

Trying to rely on a vague recollection of a conversation that took place some time ago is not the type of evidence that can be relied upon to prove a claim. You need to be precise.

A date and time, and ideally, a precise written record of what was said, by who, where and the surrounding circumstances is preferable.

Comparators

To prove direct discrimination, a member needs to show that he or she has been treated less favourably than other members of staff, using a comparator.

For example, to prove direct discrimination in race cases, a comparator must be found from a different racial group. The comparator can either be real or hypothetical.

If you are claiming race discrimination, then the comparator must be of a different 'race', colour, nationality or national origins.

If you are complaining of sex discrimination the comparator must be from the opposite sex.

In a complaint of direct discrimination / victimisation under the DDA it has to be shown that a person without your disability would not have been subjected to the same treatment.

In a reasonable adjustments claim, it has to be shown that a non-disabled person would not have suffered a substantial disadvantage due to the particular circumstances.

There is no need for a comparator in a less favourable treatment / harassment claim.

Witnesses

Witnesses can help you prove discrimination while pursuing your case internally, or if it reaches an ET.

Often people prone to abusive/offensive discriminatory behaviour are well known.

For some reason their behaviour has gone unchallenged and is tolerated - a culture of fear has been nurtured. In those circumstances it should come as no surprise if no-one will act as a witness.

A person cannot be forced to be a witness. However, it is useful to encourage individuals to come forward.

Remember that if you decide to take a case it may encourage others to do the same and this can give strength to anyone who is fearful about the repercussions.

Where an individual may not be willing to come forward voluntarily, it may be worth asking if they would be willing to do so if compelled by a Tribunal.

The best witness you have is YOU.

Claimants who are able to pursue complaints without having to rely on any additional witnesses are in a strong position.

Even where no-one else will come forward, prepare a form of words and a room plan describing the incident.

The room plan should include a scaled grid indicating the distances between where everyone was sitting in relation to the incident.

Make a note of everyone present in the room at the time of the incident. Keep the document as evidence for pursuing your complaint.