Sexual Orientation and Discrimination in Goods & Services
Taking Court Action
Do you need legal representation ?
It is possible to represent yourself in court,but it is not always the best
thing to do. Although you may have a good case, feel confident about appearing
in court and have witnesses who are willing to give evidence, the law about
discrimination is complex. It may therefore be advisable to seek legal representation.
This is particularly important with new legislation as there have may have
been very few cases similar to your own to offer guidance on what might happen.
If you qualify, legal aid may be available both for preparation of the case
and representation in court.
How to make a claim to court
Completing a claim form
In England and Wales, the complainant must complete a claim form if the
complaint is about discrimination in the provision of goods, services or facilities.
If the complainant has used the questions procedure, any information s/he
has gained from this can be used as evidence in her/his case.
If the complainant has served a claim form (or summons or writ) but has not
used the questions procedure, s/he can still do so, but will need to ask the
permission of the county court. S/he can do this by writing to the court.
She should send one copy to the court and one copy to the respondent. S/he
should also keep a copy for her/himself.
Time limits for court action
A complaint about discrimination on the grounds of sexual orientation must
usually be made to a court within six months of the discriminatory act. However,
a court has the discretion to consider a complaint outside this time limit
if it considers it reasonable to do so.
Burden of proof
If the claimant gives facts to the court showing that there is a case of
discrimination on the grounds of sexual orientation, and there is no reasonable
alternative explanation for the discrimination, the burden of proof falls
onto the person allegedly doing the discriminating (the respondent) to prove
that there has not been discrimination
The court hearing
The claim may be dealt with under the small claims track, the fast track
or the multi-track.
If the claim is dealt with under the small claims track (normally in cases
in which compensation being claimed is below £5,000), the judge may
decide to hold a preliminary appointment and attempt to settle the case at
once, particularly if s/he feels there is obvious discrimination (or that
there is obviously no discrimination). If s/he decides not to do this, s/he
may call an arbitration hearing. This is held in private. Both sides state
their case and have the opportunity to question one another. The judge then
gives her/his decision.
If the claim is complex, or the complainant is seeking compensation above
£5,000, the case will go through the fast track or multi-track procedures,
with a hearing normally being held in open court. At the conclusion, the judge
may give her/his decision immediately or give it later.
Decisions a court can make
What can the court award
If a court decides in the complainant's favour, it can award any of the following:-
- a declaration that discrimination has taken place; and/or
- an injunction or order. This means the court orders the person or organisation
responsible for discrimination on the grounds of sexual orientation to carry
out or to stop doing specific acts; and/or
- damages (compensation).
The costs of the party that wins the court action will usually have to be
paid by the party that loses.
If the claimant shows that s/he was discriminated against on the grounds
of her/his sexual orientation, the court can award damages for injury to feelings
and for other losses resulting from the discrimination. There is no limit
to the amount of damages that can be awarded.
However, damages will not be awarded in an indirect discrimination case
if the respondent can show that there was no intention on her/his part to
discriminate against the claimant on the grounds of the claimant’s sexual
In England and Wales, the claimant can appeal against a county court decision
to the Court of Appeal.
Human rights issues
It may be possible for a person who has been discriminated against on the
grounds of her/his sexual orientation to take action using human rights legislation.
This can be done either by making a claim under the Human Rights Act 1998,
or by using an argument under this Act in any legal proceedings. A claimant
will need expert advice to take action about a human rights issue.
The Human Rights Act gives effect in the UK to the rights and freedoms guaranteed
under the European Convention on Human Rights (the Convention). The Act provides
that key Articles of the Convention can be directly relied on and enforced
in UK courts and tribunals at all levels.
All laws must be interpreted in a way which is compatible with Convention
rights and all public authorities must act in a way which is compatible with
those rights. A person who believes her/his rights have been breached by a
public authority can bring legal proceedings against that public authority.
Article 8 offers general protection for a person’s private and family
life, home and correspondence, from arbitrary interference by the State.
Article 14 of the Convention prohibits discrimination and, while it cannot
be used alone, can be relied on as an additional argument in support of a
case a claimant is making on other Convention grounds.