Susan Walker Vice-President Employment Tribunals (Scotland)

1. Challenging Discrimination in the Employment TribunalThe processPresentation for Scottish Trans Justice Conference Susan Walker Vice-President Employment Tribunals (Scotland)

2. The protected characteristic • Gender re-assignment • “proposing to undergo, is undergoing or has undergone a process ( or part of a process) for the purpose of reassigning sex by changing physiological or other attributes of sex” • Personal and not medical process • Transsexual person –someone who has the PC of gender re-assignment

3. Types of discrimination under the Equality Act 2010 • Direct discrimination • Indirect discrimination • Harassment • Victimisation • Gender re-assignment discrimination

4. Direct discrimination • Less favourable treatment because of gender re-assignment • Covers cases of perception and association • Claimant need not possess the protected characteristic

5. Indirect discrimination • A practice or provision applied to everyone but it puts those with a protected characteristic at a particular disadvantage • Employer’s defence if it can be objectively justified • “Proportionate means of achieving a legitimate aim”

6. Harassment • Unwanted conduct related to a protected characteristic • Purpose or effect of • Violating dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment • Claimant need not possess the protected characteristic

7. Victimisation • Specific legal meaning • Treated less favourably because you have made allegations of discrimination or brought proceedings or given evidence in proceedings or anything else in connection with the Equality Act

8. Gender re-assignment discrimination • Special provision • Absence from work related to gender re-assignment should not be treated less favourably than • absences for sickness or injury or • other absences ( if not reasonable to treat the absences differently)

9. What does the Employment Tribunal deal with? • Claims relating to “work”. • Includes recruitment, terms and conditions, opportunities for training and promotion, dismissal and some post-employment matters. • Applicants, employees, contract workers, office holders, advocates, police officers • partnerships, employment agencies, trade unions

10. Process • Pre-claim conciliation Acas • Will be required to contact Acas before presenting claim from 6 April • Fees chargeable £250 issue fee and £950 hearing fee. • Fee remission available • 3 month time limit

11. Claim and response • Called ET1 • Details of claim – doesn’t need to be too detailed or set out in legal terms • Tick boxes • Claim served on respondent • 28 days to put in a defence • No defence – may get judgment without a hearing

12. Defended claim • Private preliminary hearing (PH) • Agenda documentation to complete • Guidance provided • At PH, judge will seek to clarify issues and can discuss restricted reporting, witnesses, documents etc. • Judicial mediation

13. Hearing • Can arrange to view a hearing in advance • Evidence given on oath or affirmation • Don’t need legal representation. • Can bring someone to support you • Adversarial process – cross-examination – can be stressful. • Judge and members will try to ensure “equality of arms”

14. Judgment and enforcement • Will receive a written judgment • Tribunal may order anonymisation • If successful , Tribunal may order re-imbursement of fees • Enforcement – if employer doesn’t pay, enforcement through sheriff officers. • Fees between £58 and £125.