This article provides guidance on drafting a grievance letter related to age discrimination, preparing for a hearing, conducting the hearing, asking the right questions, and establishing grounds for drawing adverse inferences to succeed in an employment tribunal case.
Index:
To draft a grievance letter, it is essential to clearly outline the nature of the grievance, including specific instances of age discrimination, and to support these claims with relevant evidence. Preparation for the hearing involves understanding the procedural aspects, gathering all necessary documentation, and being ready to present a coherent argument. During the hearing, it is crucial to remain impartial, ask pertinent questions to uncover the facts, and ensure that the process is conducted fairly. Drawing grounds for adverse inferences involves demonstrating that the employer's actions were motivated by discriminatory intent, as seen in the case of MAYOR AND BURGESSES OF THE LONDON BOROUGH OF TOWER HAMLETS v. WOOSTER, where the tribunal inferred age discrimination based on the employer's failure to redeploy the employee before he reached the age of 50 MAYOR AND BURGESSES OF THE LONDON BOROUGH OF TOWER HAMLETS (appellant) v. WOOSTER (respondent) - [2009] IRLR 980.
How to Write Grievance
1. Introduction: Clearly state that you are raising a formal grievance and specify that it concerns age discrimination. [however, avoid using the actual term, instead focus on your perception and feelings]
2. Details of the Incident: Provide a detailed account of the incidents or actions that you believe constitute age discrimination. Include dates, times, locations, and the names of any individuals involved. [ do not worry if you have no evidence or if you don’t know if the witnesses will want to support your case]
3. Impact: Explain how these incidents have affected you personally and professionally. [your perception is very important it should cover the area of ‘’unwanted conduct, humiliating or hostile work environment etc]
4. Evidence: Attach any relevant documents or evidence that support your claim, such as emails, witness statements, or performance reviews. [but having no such evidence does not turn your case unfounded]
5. Desired Outcome: Clearly state what you would like to happen because of your grievance. This could include an apology, policy changes, or other remedial actions. [it will show that you are still trusting the employer and seeing alternatives to redress your concerns]
6. Conclusion: Summarise your grievance and reiterate your request for a formal hearing to address the issue.
Preparing for the Hearing
1. Review the Grievance: Go through your grievance document thoroughly to ensure you are familiar with all the details and evidence. [ it is very important because during the hearing if an employer asks question that is covered in your grievance, you should not answer it but refer the person asking to relevant part of your grievance. Answering on the same question again pose a risk of explaining something differently and thus bring evidence of your accounts being not consistent]
2. Gather Additional Evidence: Collect any additional evidence that may support your case, such as further witness statements or additional documentation. [ don’t underestimate it, very often single text message may be an overturning point, check your phone, email box and pictures, even if it was you texting your friend or family member is good evidence. Or, email that you sent to the employer who either did not respond or ignored it, focus on both actions and inactions]
3. Prepare Your Statement: Write a clear and concise statement summarising your grievance and the key points you want to make during the hearing. [ it is also important to make sure that these is clearly reflected in minutes taken. If employer does not want to add it, you should not sign it! If it happens it is call unagreed minutes. The Employment Tribunal with draw adverse inferences on it if you show consistence. Following the hearing you should amend the minutes and send it to the employer]
4. Know the Procedure: Familiarise yourself with your employer’s grievance procedure, including the steps involved and the timeline. [ it is important to not accept any delays, if you accept delays you will not be able to show victimisation case against an employer as it have been recorded that you accepted delays and thus the conduct was not unwanted, and you have not been affected]
5. Arrange for Representation: If you wish, arrange for a colleague or a union representative to accompany you to the hearing. [choosing a right representation is crucial, you should take into account someone whom you trust and who will be willing to sign you version of minutes]
How to Conduct a Grievance Hearing
Stay Calm and Professional: Maintain a calm and professional demeanour throughout the hearing. [however, if you feel discriminated, intimidated or otherwise mistreated clearly express it and make sure it I included in the minutes]
Present Your Case Clearly: Clearly present your grievance, focusing on the key points and supporting evidence. [keep it coherent and consistent with your written grievance]
Listen Actively: Listen carefully to any questions or comments from the hearing panel and respond thoughtfully. [make sure that any inappropriate comment is clearly express by you, and make sure you are not answering on something that you already covered in your written grievance, instead you should refer the panel to specific part of your grievance where you answered on such question]
Be Honest and Objective: Stick to the facts and avoid making emotional or subjective statements. [unless it is something you was told during the hearing which made you feel bad]
Ask Questions: If you need clarification on any points, do not hesitate to ask questions. [ it is the most important part of your hearing. Asking appropriate question is of paramount importance. Every case is different but common questions may be, have you read my grievance letter? When did you received it? Whom are you planning to talk to? When the investigation begins? Who will be conducting investigation? How long the process will last? Has anyone been suspended? Etc. further technical questions relevant to the nature of the age discrimination grievance are disclosed below, in green]
Summarise Your Position: At the end of the hearing, summarise your position and reiterate your desired outcome. [employers normally ask a question ‘’do you want to add something else?’’ Do not take it word-to-word, but instead summarise what you have said. Name your witnesses or people you believe an investigator should talk to. Ask when you can expect answers on the questions you have raised but not got response to, and make sure it is all written in the minutes]
By following these steps, you can effectively draft a grievance related to age discrimination and prepare for and conduct the grievance hearing.
What is the Employment Tribunal Test for Age Discrimination
Direct Age Discrimination: This occurs when an individual is treated less favourably than another person in a similar situation because of their age. The tribunal will scrutinise whether the treatment was indeed because of age, especially if the age difference between the complainant and the comparator is small. For example, if an employee in their late 40s is treated less favourably compared to another employee in their early 50s, the tribunal will carefully examine if the treatment was due to age.
Make sure you know the age of your comparator, if you don’t ask the question to the hearing panel. One of the most important questions is ‘’why’’. You want to establish why you have been treated unfairly with comparison to your comparator. Most commonly it will be because of some policy, procedure or culture of the firm, but if I is not because of some rule or practice of the firm, it is most likely a direct discrimination, and you should position your question in the direction of decision maker who put you in that position.
Indirect Age Discrimination: This happens when a provision, criterion or practice (PCP) that applies to everyone disproportionately disadvantages people of a certain age group. The employer must show that this policy is a proportionate means of achieving a legitimate aim. For instance, if an employer requires a minimum of ten years' work experience for a position, they must provide evidence that this requirement is justified and necessary for the role.
Sometimes, it is obvious, and you do not need to ask question as to what the PCP is. However, bear in mind that PCP does not need o be something in writing so you well may not be aware of it. If you hear the grievance panel refers to some rule, that is not in writing, you need to ask questions about it and make notes. If your case end in Employment Tribunal you want the discussion about the PCP be present in the minutes taken. If during the hearing the grievance panel refers to written PCP and you have not been provided with its copy prior to the hearing, then ask why you have not been provided with it prior to the hearing, this would be a fundamental breach of transparency and fairness.
Justification: Employers must provide evidence to justify any age-related treatment. Simply stating that the discrimination is justified is not enough. Employers should have a paper trail explaining why a decision was taken, considering the potentially discriminatory effect of the requirement in advance.
Evidence and Inferences: The tribunal will consider any relevant questions and answers as part of the evidence in a case. For example, questions about the age group makeup of management levels or the number of promotions given to a particular age group in the last five years can be crucial. The tribunal may draw inferences from the answers provided.
This is why, asking a set of appropriate questions during the hearing is important, making sure everything is noted in the minutes and in particular all instances when the panel response with ‘’I don’t know’ ’will check and comeback to you’ ’it is not relevant’ or ‘’we are not talking about others’’ as, if during the Employment Tribunal litigation the employer provide answers to the same question they did not during the grievance procedure, you will be in best position to invite the Tribunal to draw inferences.
Common Examples of Age Discrimination Cases
Promotion and Disciplinary Actions: If an employee claims they were denied a promotion due to their age, the tribunal will examine the reasons provided by the employer. Similarly, if the claimant was the only employee disciplined for a widespread practice, the tribunal will investigate whether age was a factor in the disciplinary action.
Severance and Redundancy Schemes: In cases where an employer's severance framework includes age-related caps, the tribunal must take a holistic approach to assess whether the means adopted to achieve the legitimate aims are justified. For example, if payments are not available for those aged 65 and over who have an immediate entitlement to an occupational pension, the tribunal will evaluate if this cap is justified as part of the broader severance framework.
More About Asking Right Questions
This part of the article addresses the importance of asking relevant questions during grievance hearings and the potential consequences for an employer if they fail to provide answers to questions asked during grievance hearing after promising to do so. The analysis will focus on the ability of an Employment Tribunal to draw adverse inferences against the employer in such situations, suggesting an unfair investigation or process.
Legal Standards/Rules: Employment tribunals have the authority to consider relevant questions and answers provided during hearings as part of the evidence in a case. Furthermore, tribunals may draw inferences they consider just and equitable, including an inference that the employer has infringed the right in question, from a deliberate omission, without reasonable excuse, to provide a written statement or a statement that is evasive or equivocal.
While there is no explicit obligation on employers to respond to questions from potential claimants, tribunals may draw inferences from an employer's responses or failure to reply in relation to prohibited conduct and equality of terms claims.
Understanding Evasive or Equivocal Grievance Outcome Letter
In the context of evasive or equivocal grievance outcome letter though an employee can ask the tribunal to draw adverse inferences if the grievance outcome letter was equivocal and did not answer important questions, but the employer provides those answers during the tribunal process. The tribunal has the discretion to draw inferences from an employer's evasive or equivocal responses, as seen in the case of Royal Mail Group Ltd v Efobi, where the Supreme Court emphasised that the drawing of adverse inferences is part of the tribunal's fact-finding role and should be approached with ordinary rationality Witness evidence—inferences about absent witnesses.
During the grievance hearings, it is crucial for both parties to ask relevant and probing questions to fully understand the circumstances and evidence surrounding the case. Employers, in particular, should exercise caution when responding to questions, as their answers or lack thereof can have significant implications in potential employment tribunal proceedings. During a grievance hearing when employee correctly prepare a set of right questions it is almost inevitable for employer to avoid lack of answer. The most common approach to difficult questions from an employee it to promise to provide the answers in later stages in the process. We need to make sure the questions are clearly written in the minutes and then analyse the outcome letter.
How to Attract Adverse Inferences
If an employer fails to provide answers to questions asked during a hearing, after promising to do so, an Employment Tribunal may view this as a deliberate omission or evasive conduct. In such cases, the tribunal has the authority to draw adverse inferences against the employer, including an inference that the employer has infringed the right in question or engaged in prohibited conduct.
These inferences can be particularly damaging for the employer, as they may suggest that the investigation or process leading up to the hearing was not conducted fairly or thoroughly. [Reasoning] A failure to provide promised information could be interpreted as an attempt to conceal relevant facts or evidence, undermining the employer's credibility and the fairness of the overall process.
While employers are not strictly obligated to respond to questions from potential claimants, their responses or lack thereof can still be considered by tribunals when assessing claims of prohibited conduct or equality of terms violations. Tribunals may draw inferences from an employer's evasive or incomplete responses, which could weaken their position in the proceedings.
It is important to note that tribunals have discretion in determining the weight and significance of such inferences, considering the specific circumstances and evidence presented in each case.
Conclusion
In summary, during grievance hearings, it is crucial for employers to exercise caution when responding to questions and to provide complete and truthful answers, especially if they have promised to do so. Failure to provide promised information can lead employment tribunals to draw adverse inferences against the employer, suggesting an unfair investigation or process, and potentially inferring that the employer has engaged in prohibited conduct or infringed upon the claimant's rights. While not strictly obligated to respond, an employer's evasive or incomplete responses can still be considered by tribunals and may weaken their position in proceedings related to prohibited conduct or equality of terms claims.
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