CLAIMANT'S SUBMISSIONS ON DIRECT DISCRIMINATION — TEMPLATE ========================================================== Free template from YourWorkRights.uk — not legal advice. Adapt it to your own facts; the bracketed fields are where your specific details go. Citations refer to the leading authorities: Wong v Igen Ltd [2005] 3 All ER 81 (Court of Appeal), Zafar v Glasgow City Council [1998] IRLR 36 (House of Lords), Wakeman v Quick Corporation [1999] IRLR 424 (EAT), Meek v City of Birmingham DC [1987] IRLR 250 (EAT), and Dr Tarn v Hughes (EAT, 2018). ---------------------------------------------------------- IN THE EMPLOYMENT TRIBUNAL Case Reference: [INSERT] Claimant: [INSERT] Respondent: [INSERT] ---------------------------------------------------------- CLAIMANT'S SUBMISSIONS ON DIRECT DISCRIMINATION I. THE LEGAL FRAMEWORK 1. Direct discrimination is defined by section 13(1) of the Equality Act 2010: "A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others." 2. The Tribunal has jurisdiction under s.120(1)(a) of the Equality Act 2010 and may award the remedies in s.124: a declaration of rights, compensation, and an appropriate recommendation. II. THE BURDEN OF PROOF — THE TWO-STAGE TEST 3. The burden of proof is governed by s.136 of the Equality Act 2010, as authoritatively explained by the Court of Appeal in Wong v Igen Ltd [2005] 3 All ER 81: - Stage 1: the Claimant must prove facts from which the Tribunal could conclude, in the absence of an adequate explanation, that discrimination occurred. - Stage 2: the burden then shifts to the Respondent to prove, on the balance of probabilities, that they did not discriminate. 4. Wong v Igen is a Court of Appeal decision and is binding on this Tribunal. 5. The Claimant satisfies Stage 1 by reference to the following facts: [INSERT SPECIFIC FACTS — DATES, EVENTS, TREATMENT, COMPARISONS] III. THE COMPARATOR 6. The Claimant relies on [ACTUAL / HYPOTHETICAL] comparator(s): [INSERT COMPARATOR DETAILS — WHO THEY ARE, HOW THEIR CIRCUMSTANCES COMPARE, HOW THEY WERE TREATED DIFFERENTLY] 7. The use of actual or hypothetical comparators is expressly permissible: Wakeman v Quick Corporation [1999] IRLR 424. 8. The comparator question is "at the heart of the case": [INSERT COMPARATOR ARGUMENT]. 9. Fairness and discrimination are distinct questions requiring separate findings: Zafar v Glasgow City Council [1998] IRLR 36. The Respondent cannot escape a discrimination finding merely by showing its process was procedurally fair. IV. INFERRING DISCRIMINATION 10. Direct evidence of discriminatory motivation is rarely available. As the EAT has observed: "it is the covert rather than the overt act which is likely to provide evidence of discrimination." 11. The Tribunal is invited to draw inferences from the following primary facts: [INSERT FACTS SUPPORTING INFERENCE — TIMING, PATTERNS, INCONSISTENCIES IN THE RESPONDENT'S ACCOUNT, STATISTICS, COMMENTS] 12. The Claimant relies on the pattern of conduct as a whole: [DESCRIBE THE PATTERN ACROSS ALL INCIDENTS]. V. SPECIFIC ACTS OF DISCRIMINATION 13. The Claimant specifically identifies the following acts as the basis of the discrimination claim. Each is separately pleaded, in time, and capable of supporting an inference of discrimination: Act 1: [DATE] — [WHAT HAPPENED] — [WHO WAS INVOLVED] — [WHY IT POINTS TO DISCRIMINATION] Act 2: [DATE] — [WHAT HAPPENED] — [WHO WAS INVOLVED] — [WHY IT POINTS TO DISCRIMINATION] Act 3: [DATE] — [WHAT HAPPENED] — [WHO WAS INVOLVED] — [WHY IT POINTS TO DISCRIMINATION] [ADD EACH FURTHER ACT SEPARATELY] 14. The EAT has overturned findings where tribunals failed to identify the particular acts relied upon. The Claimant's case is distinguished: every act relied on is specifically pleaded above. VI. THE RESPONDENT'S EXPLANATION — ANTICIPATED AND REBUTTED 15. Once the Claimant establishes a prima facie case at Stage 1, the burden shifts to the Respondent, who must prove — not merely assert — that the treatment was not because of the protected characteristic (Wong v Igen). 16. The Respondent is expected to advance the following explanation: [INSERT ANTICIPATED DEFENCE] 17. That explanation is rejected for the following reasons: [INSERT REBUTTAL — INCONSISTENCIES, DOCUMENTARY EVIDENCE, TIMING] 18. Where a tribunal fails to apply the established principles properly, the EAT will remit the case. The correct principles, properly applied, compel a finding of discrimination. VII. STEREOTYPING 19. Where the Respondent's conduct was based on stereotypical assumptions about people with the Claimant's protected characteristic, that can support a finding of direct discrimination, provided it is analysed within the correct comparator framework: [INSERT ANY STEREOTYPICAL COMMENTS OR ASSUMPTIONS, WITH DATES AND WITNESSES]. VIII. REMEDIES 20. The Claimant seeks the following remedies under s.124 Equality Act 2010: (a) a declaration that the Respondent has contravened Part 5 of the Act; (b) compensation, including injury to feelings, financial loss, and interest; (c) an appropriate recommendation, if applicable: [INSERT e.g. that the Respondent reviews its policies or trains its managers]. ---------------------------------------------------------- FINAL CHECKLIST BEFORE YOU SUBMIT - Every act is individually pleaded with a date and description. - Your comparator (actual or hypothetical) is identified. - Facts supporting an inference are listed separately from the acts. - The employer's likely explanation is anticipated and rebutted. - Remedies are stated, including injury to feelings. - A tribunal must not cut down the claims you pursue at case management (Dr Tarn v Hughes) — and must give proper reasons on each issue (Meek). ----------------------------------------------------------