In most cases, you can only take the case against your employer – that is the organisation that employed you (or might have if you had got the job).

If you work for an agency, you can usually take the case against both the agency and the employer they placed you with.

In discrimination and whistleblowing claims, you can choose between taking the case against your employer, or the individuals who discriminated against you, or both. It is usually best to bring the claim against the employer because, if you win, they are most likely to be able to pay up. But you may want to name the individuals as someone you are taking the claim against too in some circumstances:

1. If there may be an argument about whether the employer can be held legally responsible (what the law calls ‘vicarious liability’) for the individual’s actions. 
2. If the employer may argue that they are not responsible for the discriminatory actions of their employee because they took sufficient steps to avoid any discrimination.
3. If you think the employer might not be able to pay up if you win and the individual will be. 
4. If you think, tactically, it will encourage them to settle. 

Remember if you bring your claim against the individuals who discriminated against you as well, you may have to do early conciliation with them.

If you just take your case against the employer, and they do argue that they are not responsible because they took enough steps to avoid discrimination, you can then ask the employment tribunal for permission to add the individual(s) as respondents. But they may not agree. It is best to add the individuals as respondents from the beginning.

You must tell Acas that you want to take a case to the employment tribunal.

You do that using Acas’ online form. If you cannot do that for any reason you can phone them (0300 123 1122 or UK text relay: 18001 0300 123 1122, available Monday to Friday, 9am to 5pm).

You then have a choice about whether you try early conciliation or not. Early conciliation is when Acas speak to both sides on the phone to help you each understand how tribunals have dealt with similar cases, and see if you could come to an agreement. It usually takes place over 6 weeks.

Any agreement you do come to through Acas is legally binding, which means both sides have to stick to it - it is the same as if a tribunal ordered it. If you reach an agreement, you can’t later make a claim to the tribunal about the same thing.

We would always advise you to try early conciliation if your employer is willing. (Unfortunately, often employers are not willing, but that may change once the case has started.) See Reasons to agree a settlement.

If you don’t reach an agreement or your employer isn’t willing to try, Acas will provide you with a number on an ‘early conciliation certificate’. You need that number to start a case at the employment tribunal, you should do this as soon as possible.

In most cases you must do it within one calendar month (in some cases you may have more time).

Don’t put it off - the longer you have the less stressful it will be. If you get something wrong and your claim is rejected, you may need time to correct it.

You can still have discussions with your employer through Acas to try to arrive at a settlement after you have started your tribunal claim.

This guide covers the law and process in England and Wales.

The process is slightly different in both Scotland and Northern Ireland.

Find out more about the process in Scotland from Citizens Advice.

Find out more about the process in Northern Ireland on Industrial Tribunals and the Fair Employment Tribunal. (This information about Northern Irish process is very brief so read these guides for more help on how to do things like value a claim, negotiate, wite a statement etc).

Acknowledgements

Advicenow is grateful to the Ministry of Justice for funding the creation of this guide under the Online Support and Advice Grant.

Advicenow would like to thank everyone who provided advice and feedback on this guide, particularly Chris Lake, Rebecca Thomas of 42BR Barristers, and editorial teams at Thomson Reuters who kindly peer reviewed it.