Starting a discrimination claim: Completing the ET1
This advice applies to England, Wales and Scotland
Top Tips for completing the ET1
- Make sure that you know the correct legal identities, or names, of the companies or people you want to make your claim against, so that you can name them correctly in early conciliation and on the ET1
- Identify your time limit for starting Acas early conciliation and ensure that you have done so
- If early conciliation has not been successful and you have received your early conciliation certificate(s) identify your new time limit for presenting your ET1 to the tribunal
- Do not leave completion and presentation of your ET1 until the last minute before time expires; give yourself plenty of time to complete it, and to ensure that it arrives at the tribunal in time according to your chosen method of sending it. Build in time for emergencies or contingencies such as your internet connection or the tribunal’s internet server going down
- Give yourself time to complete the ET1, leave it overnight or for a few hours, and go back and review it. Ask a friend or family member to read it and give comments, if that will help. If something doesn’t make sense to you, it won’t make sense to the tribunal
- Remember that it is the first document that the tribunal will read if your case goes all the way to a hearing; nothing should delay you from presenting your claim in time, but if you have time, first impressions are important. It should look as if you are treating the claim seriously
- You shouldn’t be bringing a claim unless you think that your employer has acted unlawfully, but if you are short of time, the facts of your case are more important than quoting the law
- Keep a copy for yourself
- You don’t have to send a copy to the employer or any other people you have claimed against, because the tribunal will do so, but you can if you want to
- Keep a copy of proofs of sending, and proofs of receipt, whatever method you use to present your claim
Before the ET1: Early conciliation
Before starting a claim in the employment tribunal, there is a procedure you must go through called Acas early conciliation.
Acas is an independent body with several roles. One of its roles is to try to get you and your employer to reach a settlement about your dispute, before you make your claim or, if you have already made your claim, before it reaches the hearing stage.
Conciliation is a process through which Acas acts as a channel through which you can speak to your employer about your dispute, so that you don’t have to speak to them or their representatives directly.
Acas acts neutrally during this process; it cannot give you, or your employer, advice about the strength or weakness of your claim, or of your employer’s defence of the claim.
You cannot make a tribunal claim without going through this process, which starts when you complete an online form notifying Acas that you intend to bring a claim. Acas will contact you when it gets your notification, to ask you for some more details about the dispute and the solution you want.
It’s compulsory to notify Acas, but it’s not compulsory for you to try and conciliate your dispute if you don’t want to. You can ask Acas not to contact your employer and to issue an early conciliation certificate immediately.
Acas can’t say anything to the tribunal about what happens during the early conciliation process, what you told them about your dispute or whether you, or your employer, refused to conciliate. All conversations between you, your employer and Acas are confidential.
In a discrimination claim you may be bringing your claim against more than one respondent, for example, a colleague who discriminated against you individually, as well as your employer who is liable for their discriminatory actions. You must enter into a separate Acas Early conciliation procedure in respect of every person or company you want to bring your claim against or your claim against them will not be allowed to go ahead. This means that, on Acas’ website, you must complete a separate form, called a ‘Notification of intention to bring a claim’ for each individual or company. You can tell Acas when conciliation begins that you have completed more than one form in respect of your case. You can tell Acas that you don’t want them to actually try and conciliate with every person you have completed a form for; for example you might not want Acas to try and conciliate with a colleague who has harassed you — but you must get an Acas early conciliation certificate for everyone you want to bring your claim against, as you need to enter the certificate number for each of them on the ET1.
Drafting the ET1
You start a discrimination claim by going through early conciliation and then completing an ET1 claim form and sending it to the employment tribunal. You can download a copy of the form and also complete the form online from gov.uk.
There is official guidance on how to complete the ET1 form. We have provided some additional guidance and examples below.
You should complete the ET1 claim form as fully as possible. There are some fields that must be completed. Required responses are marked on the Claim Form with a * next to the number. The required fields are:
1.2 First name (or names)
1.3 Surname or family name
1.5 Address
2.1 the name of your employer or the person or organisation you are claiming against
2.2 respondent’s address
2.3 Acas early conciliation certificate number
8.1 Type and details of claim
8.2 Background and details of the claim
Your claim will be rejected if you haven’t entered the correct responses where required to do so. If this happens, you have to complete the form again and re-submit it and you might miss your time limit. It’s better to get everything right the first time.
Section 2.1: Identifying the correct respondents in a discrimination claim
The ‘respondent’ is the person or company your claim is against.
Most types of employment-related claims can only be brought against your employer. However a discrimination claim can also be brought against individuals, such as colleagues, who have discriminated against you.
It can be a good idea to name individuals where you worked for a small limited company rather than a sole trader. It’s relatively easy for a small company to avoid responsibility for a case by simply closing down and reopening under a new name. If you can name one of the directors or other employees who discriminated they cannot use this tactic to avoid your claim.
It can also be a good idea to name the individual discriminator if your employer appears to have an argument that they took all reasonably practicable steps to prevent the individual from carrying out the discrimination. If they can show that they took all reasonable steps you won’t succeed in your claim against them, but the individual could still be liable themselves. You might also want to think about whether they are likely to have the resources to pay the award if you win.
It’s not always a good idea to name the individual in every case. It can be particularly unpleasant to deal with the people who discriminated against you rather than the employer or management, and acting against individuals can slow down the case if they don’t have a lawyer.
It’s important to correctly name the individual or company you are claiming against. You need to have an early conciliation certificate from Acas against each person or business you name in the ET1. If you start your claim without a certificate it will be rejected.
If you realise after you’ve started your claim that you have forgotten to name someone, or have got the name wrong, you can apply to ‘amend’ your claim, to get the name of a respondent changed, or have someone added. . However the tribunal will not always let you do this so it’s vital to get it right at the start.
Section 2.3: Acas early conciliation certificate
You must get a separate Acas early conciliation certificate for each person or company named as a respondent on your ET1. The names of the people or company on the claim form must exactly match those named during Acas early conciliation and set out in your Acas early conciliation certificate and they must be the person or organisation you are claiming against. If you do not have exactly the right details you run the risk of your claim being struck out by the Tribunal.
Section 8.2: the background and details of your claim
Question 8.2 of the ET1 requires you to set out the background and details of your claim. This means you must tell the tribunal:
- what happened to you (the ‘facts’) and
- give the legal basis of your claim, such as the protected characteristic your claim is based on, and the type of discrimination such as direct, indirect or failure to make reasonable adjustments
It’s usually best to divide it into 3 sections:
- background and short description of your claim
- the facts
- the legal claims/ law
You can write section 8.2 on a separate document and attach it to your form, but make sure you say in section 8.2. that a separate document is attached.
Write in numbered paragraphs.
The next few sections give guidance and examples of how to complete and ET1. Each case is different so you should focus on your own relevant facts. These materials are a guide only and are not a complete section 8.2 of your ET1 in every instance.
Introduction
Start by stating how the protected characteristic applies to you, if it needs stating, and give brief details. Explain what sort of claim you are making.
Where the protected characteristic is disability set out in more detail the facts which mean that you meet the definition of a disabled person within the Equality Act 2010.
The background to the events that your claim is about
Give a brief background history of your career and of your employment with the respondent before the discrimination began. If it is relevant and accurate, point out that until the discrimination began, you had a good employment record with no disciplinaries or time off.
The facts
You need to make sure you
- explain every incident that you are claiming was discrimination (if there’s more than one) and
- include enough detail so that the tribunal and your employer can understand what your complaint is about
You don’t have to include lots of detail — just enough that your complaint is clear. You will be able to give more detail when you give evidence to the tribunal.
Set out the facts clearly, concisely and in date order. Refer to other people by their full names if you know them, and give their job titles the first time they’re mentioned.
Try to be selective about the claims you make.. If you include weaker allegations they can detract from stronger ones. It’s better to focus on the allegations that are the strongest, most serious and most recent. When you make multiple allegations it becomes difficult to gather evidence to prove them all, and could mean a longer hearing (as the witnesses will have to give more evidence).
The dates when things occurred are important, because of time limits and so the tribunal can follow what happened. If you can’t give a precise date you need to narrow it down to a week, month, or point of the year when it occurred.
If you are describing something like continuing harassment, you can give the period over which it occurred, and exact dates of individual incidents when you know them.
You’ll need to work out whether a series of individual incidents can be classed as a single continuing act of discrimination ‘extending over a period of time’. This is where they’re linked to each other, for example if your employer uses homophobic language to describe you on several occasions or continues to apply a discriminatory policy to you.
If the incidents are linked, the law calls them a ‘continuing series of acts’ a ‘continuing act’ or an ‘act extending over a period’. The time limit for starting Acas early conciliation runs from the last day of the period, and so where Acas early conciliation begins within three months, minus 1 day, of that date, the whole series of acts is included in the claim and is in time. . This is covered in section 123(3)(a) of the Equality Act 2010.
If the incidents are not linked and part of a continuing act, you’ll need to make separate discrimination claims with different deadlines for each one. For example if your colleague made a racist comment and your manager made a sexist comment, they might not form part of the same continuing act. You should then use the earliest date as your deadline for each separate incident.
Check if:
- the last incident is definitely discrimination — if it’s not, then it can’t form part of a series of discriminatory acts, and this means your claim could be out of time and , the tribunal could reject your case
- there’s a long gap between the different incidents — if they’re far apart, they might not be one continuing act
If you’re not sure of the date, it’s usually best to use the earliest date possible as the date from which time starts to run. If you use a later date, the tribunal could decide that the later incident wasn’t discrimination or that the earlier acts aren’t linked.
Indirect discrimination — what you need to show when setting out the legal claims / law
- Identify the provision, criterion or practice (PCP) you say your employer applied to you and also applied or would apply to its other workers
- Say how the PCP put you at a disadvantage because of a protected characteristic
- say how the PCP puts people who share your protected characteristic at a disadvantage compared to those who don’t share it
Direct discrimination — what you need to show when setting out the legal claims / law
- Describe the treatment you have received
- Say what protected characteristic caused the treatment
- Identify an actual comparator, or describe a hypothetical comparator who does not share the protected characteristic but whose circumstances, in relation to the facts of your case, are not materially different
- Describe how the comparator was treated more favourably than you, or how the hypothetical comparator would have been treated more favourably. Say that a hypothetical comparator would have been treated more favourably
Victimisation
- Identify the protected act you did
- Say what detrimental treatment you were subjected to as a result
Failure to make reasonable adjustments
- Explain the provision, criterion or practice that put you at a disadvantage and why, and identify any adjustments you think could have been made, or
- Identify the physical feature that put you at a disadvantage and why, or
- auxiliary aid you needed and why
Discrimination arising from disability
- Explain how you meet the Equality Act definition of disability
- Describe how your employer knew you were a disabled person or could reasonably have been expected to know this
- Explain what treatment you received that was unfavourable
- Explain what the treatment related to, and how it was something that arose in consequence of your disability
- Does the employer have an objective justification defence? It’s for the employer to say what this is, and whether its treatment of you was a proportionate means of achieving a legitimate aim, but you can describe why the treatment was not proportionate. This could include the fact that the employer was under a duty, but failed, to make reasonable adjustments, which would have been a proportionate response.
Pregnancy and maternity discrimination
Identify the unfavourable treatment you were subjected to
Section 9 The remedy you are seeking
Question 9.1 asks you what you want the tribunal to do if you win your claim. This is almost always compensation, but there are other things a tribunal can do, such as make recommendations to the employer about how it should change a discriminatory practice or state of affairs to reduce or remove the adverse effect on the Claimant. This is known as a ‘recommendation’. If you have other claims you should also set out what you are seeking for those claims. For example you might want to be reinstated in your job, if you’re claiming unfair dismissal.
Question 9.2 sets out what compensation you are claiming. If you win your discrimination claim a tribunal can order your employer to pay compensation for any financial losses you’ve experienced because of the discrimination, and for ‘injury to feelings’.
Your claim will not be rejected if you don’t set out a detailed calculation in question 9.2 of the ET1; you can give more details of the compensation you’re seeking at a later date.
Work out how much compensation you could get for claiming discrimination.
Section 11: Your representative
If someone is going to act on your behalf in dealing with the case, and they agree to be named as your representative, you can add their details here. The tribunal will send all letters about your case to your representative, not you, so only name them if you’re sure this is the right thing for you.
