Gathering evidence about housing discrimination
If you haven't already checked, make sure your housing problem is covered by the Equality Act before you take any action - check if your problem is discrimination.
If you're being harassed, it might be discrimination under the Equality Act. Check if your harassment problem is covered by the Equality Act.
You should decide how to solve your problem before you gather evidence.
Before you complain or take legal action about housing discrimination, you should prepare carefully.
The first thing you need to do is to work out what evidence you need to gather to support your case. It's more likely you'll get the result you want if you're well prepared.
Make a record of what happened
You'll need to collect evidence that helps you prove what happened and that your situation is covered by the Equality Act.
To make sure you remember what's happened, make notes about:
- the way you've been discriminated against, for example being stopped from using your communal garden
- the date the discrimination happened - or each time it happened if it was more than once, like when you spoke to a letting agent or landlord and when they replied
- the names of anyone who's involved, like someone from your housing association who's harassed you, and what they said or did
- anything you can remember about evidence that's been lost, such as an email you deleted without realising it was important
- the 'protected characteristic' that was the reason for the unfair treatment - you can check the protected characteristics if you're not sure
- how the discrimination has affected you, for example the emotional impact of being harassed or if you've missed out on a home you wanted to rent
- receipts for extra expenses - like extra letting agent fees if you were evicted or could not live in your home because of the discrimination
Collecting your evidence
Evidence can be documents, your own description of what happened or a witness's version of events.
Try to gather evidence that helps explain the situation, for example letters or emails if you have them.
You can look for evidence from social media if you use it to communicate with anyone who manages or controls your home. For example, your landlord might have posted a threatening message on Facebook. Print out the messages if you can, or take a picture or screenshot.
Check that the person you're complaining about has followed their own policies or done as they should - if they haven't, you can use this as evidence to support your case.
They might have, for example, a policy or procedure on letting a home, collecting rent or how they treat vulnerable tenants.
If a policy helps to back up your arguments, get a copy. It might be on a website or in the documents you were given when you first found the home.
If the problem is about your rented home, it's a good idea to check your tenancy agreement. It might say what your landlord should do in your particular situation, for example, respond to repairs within a certain time limit.
Check if there were any witnesses
If someone else saw or heard what happened, ask them what they witnessed. If it backs up your complaint, ask them if they’re happy for you to give their name when you complain. If you’re taking legal action, find out if they’ll be willing to write a formal statement and come to court as a witness - your case will be stronger if they do this. You could ask them to start writing some notes , which will make it easier for them to write their witness statement later.
You don’t have to have a witness. Your own evidence can be enough.
Involving witnesses if you're planning to take legal action
If you go to court, you'll have to follow the court's rules about how you present evidence from your witnesses. The rules are known as the Civil Procedure Rules (‘CPR’). You can check section 32 of the CPR for the rules about evidence.
If you don’t follow the rules, you might not be able to rely on the evidence you want to (the legal term for being allowed to use evidence is ‘admitted’).
You'll have to provide a written witness statement for every person who'll give evidence to the court, including yourself.
What witnesses need to do
If you go to court you’ll be given instructions about when you need to send your witness statements to the court and to the other side. These instructions are called ‘directions’. You’ll need to ask your witnesses to write a formal witness statement. If you can't do that you might be able to include other evidence, like a letter, but the court might not allow that evidence to be admitted or might give it little weight.
When you're gathering your evidence you need to check whether the witness is willing to come to court and give evidence on your behalf. Their statement should be based on what they saw or what they know - it shouldn't be what you told them happened.
Explain that they'll need to give a written statement in a particular format and sign it to confirm it's true. They'll also have to give evidence in person at court. You should tell them that the other side, or their lawyer, can ask them questions about their statement (this is called 'cross examination').
Going to court can be stressful for a witness, so you need to think about whether they're able and willing to do this. If they drop out at the last minute it could affect your chances of success.
Preparing to write your witness statement
Writing your witness statement can take a long time so it's a good idea to write some notes now to help you save time later.
Before writing it, make sure you understand and focus on:
- what incidents you say were discrimination - there might be more than one
- what type of discrimination you think each was (direct, indirect, for example) - it might be more than one type
- what needs to be proved for each type of discrimination
- which facts the other side admits and which they dispute
If you don't think you have evidence
You don't need to have documents to show how you were discriminated against.
Discrimination often happens in a conversation or a meeting - your notes on who was involved and what they did can be evidence.
Check the evidence you need for different types of discrimination
Check the different types of discrimination if you're not sure which is happening or happened to you.
If you have more than one discrimination claim, write them all down in date order - you can do this in the same document as other notes you've made. Identify what type of discrimination each one is.
This will help you include all the evidence you need. It will also help you decide whether to go to court and, if you do, help you to prepare your case. Your list could look like:
What type of discrimination it was
28 June 2018
My landlord told me he wouldn’t let me pay my rent by bank transfer and said I had to pay it in cash at his office. I told him I couldn’t do this because of my mobility problems but he told me to just ‘find a way’.
A failure to make reasonable adjustments for my disability
30 July 2018
I told my landlord that my rent would be a few days late this month as I needed to wait until my daughter visited so she could take me to the office. I was charged a late payment fee of £25.
A failure to make reasonable adjustments for my disability and
14 August 2018
My landlord phoned me demanding that I come to the office and pay the rent. I said I was not able to because I had to wait until my daughter was able to take me next week and I would catch up with what I owed. My landlord told me that it wasn’t his problem and he should never have rented the property to someone like me. He said if I could not pay the rent I should just get out of his house and he’d send someone round to throw me out. I felt intimidated and humiliated.
Harassment on the grounds of disability
19 August 2018
I went to the office and paid the rent but my landlord said he was still going to serve me with an eviction notice because I had paid my rent late.
He handed me a notice seeking possession.
Harassment on the grounds of disability
If you identify more than one type of discrimination you’ll need gather evidence for each type - your list might help you with this.
Get help if you aren’t sure how to gather the right facts and evidence.
If it's direct discrimination
You’ll need evidence to show that a ‘comparator’ in the same situation as you would have been treated differently. If you know someone who could be a comparator, you can try to find out what happened to them and get a statement from them.
You’ll also need to think about how you could show that your protected characteristic was the reason or one of the reasons you were treated differently. The landlord, property manager or controller will probably say they have another reason, for example, if your a landlord or letting agent offered the property to someone else they might try to show the other person was a more suitable tenant.
Look for evidence that they have:
- ignored their own policies - make sure you have a copy of the policy
- given conflicting reasons for their actions or couldn’t explain them at the time - write down what they said and get copies of any documents or emails
- discriminated against other people - you’ll need statements from them or other evidence of this happening
- said or done things which make you think they’re discriminating - write down what happened
Raymond has a learning disability and rents a flat. He asks the property manager to fix his shower and they don’t reply for 4 weeks. When his neighbour, Bob, asked for his shower to be fixed, it was done within 2 weeks.
Raymond might be able to argue the property manager was slow to reply because of his disability - Bob would be his comparator.
When Raymond has asked for repairs in the past his landlord also took longer to respond to him than other tenants. He’s also heard his landlord making jokes about people with learning disabilities. This makes him suspect that the reason his landlord is taking longer to respond is his disability.
If the reason for the extra delay in fixing his shower was Raymond’s learning disability then he could argue it was direct discrimination.
Raymond would need to have evidence that the property manager delayed because of his protected characteristic and not some other reason if it is a one-off incident.
Raymond could ask Bob to provide him with a written statement to show what happened when he made a repair request to the landlord and how long it took.
If there isn’t someone who has been in the same or similar situation you should try to create a ‘hypothetical comparator’.
Duncan accidentally burns the carpet in his flat and tells his landlord, who owns all the flats in his block. The landlord say she’ll evict Duncan for causing damage.
Duncan thinks the real reason his landlord wants to evict him is because he’s disabled. He doesn’t know any other tenants with the same landlord who’ve had a similar situation, so he doesn’t have a comparator.
He finds out that his neighbour Jasmin, who isn't disabled, hasn’t paid her rent for 3 months and has been in trouble with the landlord for being noisy. The landlord hasn’t threatened to evict Jasmin.
Duncan and Jasmin have both broken terms of their tenancy agreements. Jasmin's breach of the tenancy is more serious than Duncan's but their landlord is only trying to evict Duncan.
Duncan can argue that Jasmin's treatment is evidence of how a hypothetical comparator would be treated. He can say that her behaviour has been worse but she hasn’t been asked to leave.
To get evidence to support this, he can ask Jasmin to write some notes about how the landlord dealt with the problems she’d caused.
If Jasmine doesn’t agree, Duncan can still use his own testimony as evidence.
Direct discrimination is covered in section 13 of the Equality Act 2010.
If it's indirect discrimination
There are a few steps to gathering the right evidence.
Identify what’s putting you at a disadvantage
First find the policy, rule or practice that puts you and people who share your protected characteristic at a particular disadvantage compared to people who don’t share it. The law calls this policy or rule a ‘provision, criterion or practice’.
You’ll need to say which policy, rule or way of doing things is unfair to people with your protected characteristic. It might be, for example, a rent arrears policy or a rule about anti social behaviour.
If it’s written down, try to get a copy - this could be in your tenancy agreement or on a letting agent’s website.
Gary has been diagnosed with ADHD and has checked he’s disabled under the Equality Act 2010. As a result of his ADHD, Gary sometimes loses his temper and shouts out.
The landlord has a policy saying that if there are complaints about a tenant making noise, the tenant will be evicted.
Gary can argue that the policy puts him and people who share his protected characteristic at a particular disadvantage compared to tenants who don’t have his disability, so it could be indirect discrimination. He might also be able to argue that this is discrimination arising from disability.
Gary could ask his landlord for a copy of their anti social behaviour and eviction policy or download a copy from their website. If there isn’t a written policy he should write down who told him there was a policy and when they told him this.
It doesn’t have to be called a policy or rule and it might not be in writing. For example a letting agent might tell you they only let people move into their homes on a certain day. Another example might be that a landlord always ignores phone calls from tenants and only ever replies to emails.
Show how it affects other people
You’ll need to show that the policy or rule seems to be neutral but puts people with your protected characteristic at a disadvantage. Think about whether it covers everyone, for example, it might be a tenancy agreement with standard wording that a landlord uses with all their tenants.
You then need to think about whether it puts people with your protected characteristic at a particular disadvantage compared to people without it. It doesn’t have to affect everyone with your characteristic.
For example, you could argue that banning tenants from changing light fittings discriminates against visually impaired people who might need to install stronger lighting.
You could try to get evidence to show how it affects other people with your protected characteristic.
Get evidence about the reason for the discrimination
A landlord, property manager or controller might try to justify the way they’ve treated you. Write to them to ask why they treated you the way they did. You could raise this in a complaint letter. Ask why they need to have the rule or why they can’t agree to the changes you’ve asked for.
When you know the reason, think about whether they could have met their aim without discriminating against you. Try to think of ways they could have done things differently.
For example, you might have a landlord who wants you to move in on a certain day of the week, but you can’t because of your religion.
You might be able to gather evidence to show that the landlord’s office is open on another day so they could do check-ins that day instead.
Indirect discrimination is covered in section 19 of Equality Act 2010.
If you’re being discriminated against because of disability
You’ll need to be able to show you’re disabled and the impact it has on you.
Check the Equality Act definition of disability and write down why it covers you.
You'll need to say how you meet all the elements of being disabled. These are:
- you have a physical or mental impairment
- that impairment has a substantial and long-term adverse effect on your ability to carry out normal day-to-day activities
You’ll also need to write down
- how long you’ve had the disability
- the way it affects your day to day activities
- any treatment you’ve had
- how it will affect your life in the future - for example if you’ll have the condition for the rest of your life
If you’re trying to get a policy changed you should also make a note of how the policy affects you and people with your protected characteristic. You’ll need to pass this information to the person who’s discriminating against you.
If you’re taking any medication, make a note of how often you take it, how much and what side effects it has. Say what would happen if you stopped taking it, or what happens when the effect wears off - like if you’re taking painkillers.
Try to give some examples rather than making general statements. So instead of saying ‘I can’t lift things’, say ‘I can’t carry the shopping home any more, or put it in the car by myself. Someone has to come with me to help me.’
If you find it difficult to say how it affects you, or your symptoms change from week to week, you might find it helpful to keep a diary.
Dev has depression. He could describe his situation like this:
‘I’ve had depression for 3 years. Even though I take anti-depressants and see a therapist, my depression has a big impact on my life. I often find it hard to get up in the mornings and it takes a long time to get ready for work. I have trouble shopping for food and cooking. I find it very hard to mix with people because I feel nervous in busy places.’
Lisa might describe her arthritis like this:
‘I’ve had arthritis in my hips for a year - my doctor says I’ll have it for the rest of my life. I had to go part time at work because I’m in pain in the mornings. It takes me a lot longer to walk than it used to and I need to use a walking stick’.
If you think the person who discriminated against you might disagree you’re disabled under the Equality Act 2010, you could ask people who know about your disability to write letters to use as evidence. For example, you could ask your carer, doctor or physiotherapist to write one. If you ask for a letter, check if you have to pay for it.
You don’t have to do this straight away. You can wait to see if the person you’re complaining about disagrees that you’re disabled.
Proving whether your landlord, property manager or controller knew you were disabled
You only need to show they knew you had a disability if it was discrimination arising from your disability.
This might be because you told them or because they should have known.
Evidence for showing they knew or should have known includes:
- an email you sent them explaining your disability
- copies of any complaint or request you’ve made to them for changes to your home to make it easier for you to live there
- notes of any meetings or conversations where you told them about it
- your housing application form if you told them on that
If you only told them verbally, write down who you told and when.
If you didn't tell them about your disability, you might be able to prove they should have known anyway. The legal term for this is they should ‘reasonably have been expected to know’. This should be based on what they knew at the time of the discrimination.
This is covered by section 15 of the Equality Act 2010.
Helena told her landlord that she wouldn’t be able to make an appointment for a property inspection as she had a hospital appointment. Over the last six months Helena’s landlord has tried to rebook the visit but Helena has been unable to make the appointments as she’s had several stays in hospital.
Helena has told her landlord to send copies of any letters to her son as he’s helping while she’s in hospital for long periods.
Helena hasn’t told her landlord directly that she has a disability but all of that could mean Helena’s landlord should have realised she might have a disability based on what she’s told him.
If your landlord, property manager or controller says they don’t think you have a disability
You should explain why you think you have a disability under the Equality Act 2010 and ask them why they disagree. You could try to get evidence to support your case and then show it to them to try to get them to change their mind.
You might be able to show that your condition is a disability under the Equality Act by looking online. Check if there are any charities or organisations that represent people with your disability. Their website might help you to work out whether the condition might be covered by the Equality Act.
You'll still need to think about your own situation. Not everyone with the same condition will be affected in the same way - some might be disabled under the Equality Act and others not.
To show you've got a disability you can either get a report from your doctor or go to an independent medical specialist. You might have to pay for the report.
Going to your GP will probably be much cheaper than an independent specialist, which can cost hundreds of pounds. An independent specialist will count as stronger evidence if you go to court. In some cases the court will order you to get an independent report and might say that both sides should ask the same expert to write one report. This is called a ‘joint expert report'. If this happens the costs will be shared between both sides.
Make sure the doctor will be able to give you the report in time for when you need it.
Example letter to ask for a medical report
Dear Dr Wilkes,
I’m a patient of yours at Village Surgery.
I’m planning to bring a claim at court against my landlord, Seaview Housing Association.
My claim is about disability discrimination. I need to get medical evidence to show my landlord and the court that my arthritis meets the definition of disability under section 6 of Equality Act 2010.
Section 6(1) says:
“A person (P) has a disability if (a) P has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on P's ability to carry out normal day-to-day activities.”
Please let me know if there will be a fee before you prepare the report.
I need the report to include:
- a description of the symptoms I’m being treated for
- the effect of the symptoms on normal day to day activities
- a description of the treatment I’m receiving
- a description of the symptoms I would have if I stopped receiving the treatment
- your diagnosis of the conditions I have
- how long I’ve had the symptoms and conditions, and how long they’re likely to last
- whether my symptoms are likely to get worse in future
- a complete set of copies of my medical records from 2010, when I first came to the doctor with symptoms of arthritis
Please can you send your report to me by Thursday 18 October? f you can’t do it by this date, please let me know when you can send it.
Thank you for your help.
If the landlord, property manager or controller still disagrees, you could still complain and include your evidence. If you’re taking legal action you would need to go ahead and make your claim and ask the court to make a decision about whether you have a disability under the Equality Act 2010. The court will listen to what you say but you’ll have a much stronger case if you can show them medical evidence. You might also be asked by the court to get medical evidence in the form of a joint expert report.
You can ask the medical professional to include other comments, based on your situation. For example, if someone’s complaining about your behaviour, you can ask if the behaviour is linked to your disability.
You could also ask the professional to comment on whether there are any other ways the problem can be solved or improved which would discriminate against you less. For example, if you’re being accused of anti social behaviour that you think is because of your mental health condition, you can ask if any treatment could help. This might be counselling or other support.
If your landlord, property manager or controller hasn’t made reasonable adjustments for your disability
Get all the facts you have on:
- what you asked for (the ‘reasonable adjustment’) and when - check if the adjustment is covered by the Equality Act if you’re not sure
- whether you got a reply and what was said
- what happened next, for example if you asked again or asked for something different
You should also find out why they say they can’t make the adjustments. Think about their reasons and whether you can get any other evidence to argue against them. For example if they say it’s too expensive, think about what information is available about your landlord, property manager or controller’s financial situation. You don't have to do this but it could help you assess the strength of your case if you can.
Think about how you’ll explain that the change you asked for was ‘reasonable’.
It’s a good idea to consider:
- how long you’re likely to live in the property
- how much it will cost
- how difficult it will be for the landlord or manager to make the change
- how much the change is likely to help you
For example, if it’s a big housing association you might expect them to spend more on adjustments than a landlord who only has one property.
It’s a good idea to write down the difficulties you have without the adjustment and how the changes you wanted would have helped.
Think about whether there were any other changes they could have made that you didn’t ask for at the time. You can still mention these if you decide to go to court or you could suggest them now.
If you know anything about their financial circumstances, or adjustments they’ve made for other people, you could consider this when thinking about what’s reasonable.
Reasonable adjustments are covered in sections 20, 21, 36 and Schedule 4 Equality Act 2010.
If you’re being discriminated against because of something ‘arising from disability’
Get evidence to show that the reason you’ve been treated the way you have was connected to your disability.
For example, if your landlord is understanding about the fact you’re deaf but has a problem with your assistance dog, you could:
- print copies of any emails he’s sent about you having the dog in the property
- get witnesses to make notes of discussions about the dog they’ve had with the landlord on your behalf
The person you’re complaining about will probably say they had a good reason for doing what they did - the legal term for this is a ‘proportionate means of achieving a legitimate aim’. Try to think of reasons they might have for treating you the way they did, or ask them. Then think of any evidence you have to show they could have achieved their aim without discriminating against you.
Discrimination arising from disability is covered in section 15 of the Equality Act 2010.
Martin’s landlord is a housing association. They say his behaviour is anti social and that they’ll evict him. Martin has bipolar disorder and severe mood swings - if he’s confronted he can react by shouting and swearing. He’s asked an adviser to help him deal with the threat of eviction.
His adviser tells the landlord that if Martin is moved to a quieter flat he won’t be as likely to behave in an anti social way. Or he could stay in his flat and get extra support - in this situation, Martin’s adviser could suggest that the landlord works with him and with support services to help him manage his disability instead of evicting him. This option should help protect other tenants from ongoing anti social behaviour but would discriminate against Martin less.
If you've been harassed
Make sure you've written down in detail what was said, when, where and by whom. Make it clear the behaviour was unwanted and related to a protected characteristic. You might have made complaints or said something, so you’ll need to include that in your evidence.
Courts don't expect you to have a witness to support you - most harassment isn't witnessed.
If anyone witnessed the harassment, get them to write down what they saw or heard. This could be a friend who you told what was happening at the time.
It could also be another tenant who has been through the same thing. Make them aware that they might be asked about what they witnessed in a court hearing so they need to be as clear and accurate as possible.
If someone doesn’t agree to being a witness, ask if they’re willing to tell you what happened to them or what they saw. Write down what they say in case it’s useful later.
If no one witnessed the harassment you can still make a complaint or take legal action - your own version of events is evidence. It’s a good idea to write down what happened as early as you can so you have an accurate record.
Harassment is covered in section 26 of the Equality Act 2010.
If you've been victimised
If it’s victimisation you’ll also need details of the action you took before. The evidence you’ll need could include:
- a copy of your complaint - or a note of what you said if you made a verbal complaint
- a note of how you were treated and copies of any documents relating to it
- your landlord, property manager or controller’s reason for the way they treated you
- facts which suggest a link between the way you were treated and the complaint - like being given a formal notice asking you to leave a few days after your complaint, or if your landlord didn’t follow their own policies
- examples of how other people were treated in similar cases - you can ask the other side about this if you need more information
If you made a statement to back up someone else’s complaint, you should include that in your evidence.
You might find it useful to list all the events that happened in date order when making a victimisation claim. This is called a ‘chronology of events’.
Victimisation is covered by section 27 of the Equality Act 2010.
If a local council, housing association or another public body has discriminated against you
There are extra duties for organisations that are:
- ‘public bodies’ - this includes local councils
- 'exercising public functions’ - this is usually where they provide something that’s normally provided to the public by the state, like social housing
If these organisations haven’t met their extra duties, you can make an extra argument when you complain about discrimination or when you take legal action. You should try to get legal advice if you want to do this as it can be complex.
You might be able to argue that they have 'failed to have regard to their Public Sector Equality Duty' (PSED) or that you have a 'public law challenge'.
Check if you can make a public law challenge
You can make a public law challenge if the organisation has acted unlawfully.
This might include things like if they have:
- done something they don’t have the legal power to do
- acted in a way no other public authority would act in the same situation
- not followed their own policies without a good reason
- failed to follow the law including human rights law and equality law
- failed to explain their decisions properly
You’ll first need to check whether the organisation is a ‘public body’ or ‘exercising public functions’. A local council acting as a landlord will count as a ‘public authority’.
You could write to the organisation as ask them to give reasons for their decision - this includes asking about any law or policy that it’s based on. You could also ask them for a copy of any records they hold about you.
To check if they’ve broken their own policies, look for the policy on the council or housing association’s website or ask them to send it to you. They might, for example, have an equality policy or a tenancy management policy.
Make a copy of the policy, for example by printing it from their website. You should also make notes about the parts of the policy they haven’t kept to or which discriminate against you.
Check if you can make a PSED challenge
Organisations exercising public functions must consider equality when they:
- make decisions
- write policies
- apply policies
This includes local councils and some housing associations. If you haven’t already checked, you’ll need to find out if they count as a ‘public authority’ or if they are ‘exercising public functions’ because they’ll only have these extra duties if they are. A local council acting as a landlord will count as a ‘public authority’.
The Equality Act says that when exercising their functions, public authorities must ‘have due regard’ to the need to:
- eliminate unlawful discrimination
- advance equality of opportunity between people who share a protected characteristic and those who don’t
- foster or encourage good relations between people who share a protected characteristic and those who don’t
The Public Sector Equality Duty is covered in section 149 of Equality Act 2010.
You can read more about what PSED means.
Make notes of the way they’ve failed to keep to their duties and gather any evidence that helps to show this, for example policies or emails.
If you’re planning to take legal action or defending an eviction
There are extra things you need to do when you’re gathering evidence for court.
Check you can show every part of your case
When you’re gathering your evidence you need to think about what you’ll have to establish at court.
You need to establish that:
- you’re protected by the Equality Act 2010 - check whether your situation is covered
- if your case is relying on you or another person having a protected characteristic, you can prove the Equality Act 2010 definition of the protected characteristic
- the unfair treatment was one of the different types of discrimination, for example indirect or direct - this is called ‘prohibited conduct’
You’ll also need to establish all the elements of the prohibited conduct set out in the Equality Act 2010.
For example, if it’s indirect discrimination you’ll need to show that a provision, criterion or practice has been applied to you which puts you and people who share your protected characteristics at a particular disadvantage when compared with people who do not share the protected characteristic. You'll also need to show how it actually puts you at that disadvantage.
How the court will treat your evidence
Under discrimination law a special rule applies about who has to prove which parts of the case - this is known as having the ‘burden of proof’. The general rule is that you have to prove all the elements of your case. In some situations the other side will then have to prove that something wasn’t discrimination or that the discrimination was justified - this is called ‘shifting the burden of proof’.
If you take action in court, you have to set out the facts of your case - this includes showing that any incidents happened in the way that you say they did and why you think it was discrimination.
The court will decide whether it could be discrimination based on the facts you’ve given. At this point they won’t be looking at the other side’s explanation. The court must find in your favour unless the other side can prove the way they treated you wasn’t discrimination.
The rule is not easy to apply and can be confusing. These rules are covered in section 136 of the Equality Act 2010.
There are also other ways that the burden of proof 'shifts'. If it’s indirect discrimination or discrimination arising from disability, you have to show the elements of the prohibited conduct but if the other side wants to defend their conduct, the burden of proof shifts to them to prove that they can justify the discrimination (that it was a ‘proportionate means to achieve a legitimate aim’).
The standard of proof to which the court needs to be satisfied of each relevant element is the ‘balance of probabilities’ - this means that it’s more likely than not.
Make sure you keep to the court’s rules on evidence
You’ll be expected to follow rules about court action - most of them are covered in the ‘Civil Procedure Rules’ ('CPR'). The court’s main aim is to make sure that each case is dealt with fairly. Some of the rules are about your evidence, for example that witness statements have to be in a particular format.
If you don’t follow the rules, it might affect your case, for example:
- your case might not be heard
- you might not be allowed to rely on certain documents or evidence
- you might have to pay the other side’s legal costs, even if you win
You’ll get a court order which tells you that you’ll have to share documents with the court and the other side. This is called ‘disclosure and inspection of documents’. It’s not just paper documents that you have to share - a ‘document’ means anything that contains information including electronic data, like emails and text messages.
You have to disclose any ‘documents’ that you have sent, received or have got rid of that you want to rely on. You also need to disclose any documents you have that might support the other side’s case. If you have documents that you know will weaken your case, it might not be worth going to court.
You don’t need to disclose ‘privileged’ documents. Privileged documents include things like letters from your solicitor giving you legal advice.
It’s important to fully comply with any court order for disclosure of documents. The rules are in Civil Procedure Rules Part 31.
Decide the best way to solve your problem
When you’ve got all your evidence it’s a good idea to reconsider how you’ll solve the problem. You might find you don’t have enough evidence for one claim or that you could make a claim for a different reason. If you think you might be able to claim for another reason, check if it could be discrimination.
If you’ve identified more than one type of discrimination you can take action based on all of them. Sometimes the evidence you have on one type will be the same for another type, for example if there is a failure to make reasonable adjustments and discrimination arising from disability.
When you’ve collected your evidence, you’ll need to think about how strong it is. It won’t be strong if it:
- doesn’t back up what happened to you, for example you don’t have documents or witnesses - remember you can be your own witness
- doesn’t show that the problem is discrimination under the Equality Act 2010
- is contradictory or unreliable, for example if different documents or witnesses say different things
Raj wants to complain that he’s been racially harassed by a staff member at his local housing office. He doesn’t need lots of witnesses but he does need to think about any evidence his landlord might have.
Raj has asked his friend who witnessed the harassment to write a letter but the facts are different to what Raj remembers.
This could be used to undermine Raj’s account of what happened and if he went to court he would have to disclose this document to his landlord.
He also thinks his landlord might also have notes from a tenancy inspection which happened after the harassment. His housing officer asked if everything was OK and he said it was. This could be used to contradict his argument.
Lee wants to claim discrimination arising from a disability by his landlord.
He’s asked his GP to write a letter to support his case. Lee’s GP has written that his impairment is likely to last for 12 months but it doesn’t say how his impairment affects him. The letter is evidence that Lee has a long-term impairment but it doesn’t say whether his impairment has a substantial adverse impact of his normal day-to-day activities.
Lee could go back to his GP and ask for more information so he has evidence that he meets the definition of disability in section 6 of Equality Act 2010.
If Lee takes action without this, his case will be weaker because his landlord might dispute that Lee is covered by the Equality Act 2010. Lee could argue that his own description about how his impairment affects him is enough to prove he has a disability but this evidence might not be as strong as if it came from a medical professional.
It’s a good idea to consider what kind of evidence or witnesses the other side might have. Try to work out which side has the strongest evidence. If you think your landlord, property manager or controller has stronger evidence that weakens your case then you probably won’t be able to win your case.
You should think about how strong your evidence is before complaining. If you complain without much evidence, it could be hard to keep a good relationship with your landlord, property manager or controller - although they’re not allowed to victimise you because of your complaint.
If you do decide to make a complaint, you can use the opportunity to ask your landlord, property manager or controller for evidence which will help you to decide how strong your case is, if you’re considering taking it further.
If you’re planning to take legal action, the court will make their decision based on the evidence from both sides. If you have evidence to support each element of your case you have a better chance of winning.
If you lose your case you might have to pay the other side’s costs - but this depends on your case.
If you decide to go to court you’ll need to think again about your evidence to make sure you have what you need to support your case.
If you’re defending an eviction you can use discrimination law to challenge your eviction.