Settlement agreements are often used to require individuals to waive their rights to pursue claims of discrimination in the employment tribunal.
There are various types of discrimination claims which may be brought in the Employment Tribunal.
These include sex, age, sexuality, race, religion or belief, nationality and/or disability discrimination. All of those claims may be brought within three months of the date of an act or omission which gives rise to less favourable treatment based on one of the prohibited grounds.
These claims may be brought to the Employment Tribunal, and it is possible to recover both financial losses as well as a sum attributable to your injury to feelings.
The financial losses are unlimited, unlike unfair dismissal claims which contain a statutory limit.
Proving your claim for discrimination
To prove a discrimination claim, one must show that they have been treated less favourably than a comparator for a prohibited reason or on a prohibited ground.
If you believe that a discrimination claim may have arisen before or as a result of you being offered the settlement agreement, you should advise your solicitor accordingly.
It is for your instructed solicitor to factor that into his or her thinking when advising you on your settlement agreement. This will have a significant impact on whether or not you should sign the settlement agreement or whether you should consider negotiating the sums being offered to you under that agreement.
Because a discrimination claim has unlimited damages if there is compelling evidence supporting a discrimination claim, then it may be the case that you should negotiate on the terms of the settlement agreement to leverage an increase on what has been offered to you. Your solicitor advising you on the settlement agreement can advise you accordingly.
Types of discrimination
Discrimination primarily comes in two forms firstly direct discrimination and secondly indirect discrimination.
This is where an employee can argue that a comparator is being treated more favourably than they are and the reason for this less favourable treatment that they are suffering is a prohibited reason.
This is where there is a criterion or practice employed by an employer which has a comparatively less favourable impact upon individuals who occupy a protected characteristic.
For example, a provision which is causing less favourable treatment to be suffered by working mothers could be regarded as indirectly discriminatory on the grounds of one sex.
In addition, a criterion or practice which required individuals to work on certain days of the week which may ordinarily be set aside for religious reasons could amount to less favourable treatment on the grounds of religion or belief.
Employees who believe that they may have been subjected to discriminatory treatment would be advised to issue a formal written grievance under the ACAS code of practice governing workplace disputes.
This will require their employer to instigate a formal process to address their concerns including investigating those concerns setting up a meeting to discuss those concerns and issuing a written conclusion with reasons for that conclusion together with the right of appeal.
If an employee remains unhappy following the conclusion of a formal grievance process, they are at liberty to issue a claim in the employment tribunal within three months of the date of the alleged act or omission which they say gives rise to a claim of discrimination.
Before you sign
Before signing a settlement agreement, individuals should make sure that they provide full details of any discriminatory treatment they have been subjected to by their legal adviser.
That legal advisor will need to factor into his or her consideration the potential merit in any discrimination claims together with the potential value of the same when determining whether or not these sums of money payable under the settlement agreement are sufficient given the fact their client may be waiving the right to pursue those claims.
Discrimination claims with merit of course also have a stigma attached and as such employers are often keen to resolve those amicably rather than fight the issue in a public forum i.e. the employment tribunal.