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Step 1: Check the time limits for taking action

This advice applies to Scotland

There are two main types of court action if you want compensation or to get the landlord to do something for you, like make a reasonable adjustment for your disability: Simple Procedure and Ordinary Cause. They’re both in the sheriff court. You’ll decide what type of court action you want to take in step 2 but keep the deadline in mind at all times.

You need to act quickly because there are strict time limits for taking legal action. The deadline for starting legal action is 6 months less 1 day from the date you were discriminated against.

To start legal action for compensation under Simple Procedure or Ordinary Cause you need to have submitted a claim to the sheriff court and had the claim ‘served’ on the other side within 6 months less 1 day from the date you were discriminated against.

‘Service’ is a formal legal process where the respondent is sent a copy of the claim form by a legal agent, such as a solicitor or sheriff officer. It’s usually
delivered by recorded delivery or in person. It’s used so that the respondent
knows legal action is being taken against them and can’t use not knowing about
the claim as a defence. In Simple Procedure, you can ask the sheriff clerk of
the court to organise formal service for you.

For example if you were discriminated against on 13 July, you need to make sure the claim has been served on the respondent by the end of the day of 12 January.

Under the Simple Procedure rules, if your deadline falls at the weekend a bank holiday or court holiday, you'll need to make sure the claim has been served on the respondent by the end of the last working day before the deadline.

It’s very important to have prepared your claim and submitted it to the court with time to spare to allow formal service to happen within the deadline.

If you don’t want compensation but you want another remedy, like a declaration that a policy or practice was discriminatory

You would take action under a legal process called Summary Application, in the sheriff court. The deadline is still 6 months less 1 day from when the discrimination happened. Submitting the claim to the court should be enough to ‘stop the clock’ on the deadline but it’s safest to also allow enough time for formal service on the respondent to happen within the deadline.

You’ll need to work out whether the different incidents could be classed as ‘continuing’ over a period of time. This is where they’re linked to each other, for example if your landlord 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' or a 'continuing act' and time only begins to run when the last act is completed. This is covered in section 118(6)(a) of the Equality Act 2010.

If the incidents aren't linked, you’ll need to make separate discrimination claims with different deadlines. For example if your landlord made a racist comment and the letting agent made a sexist comment, they might not be the same continuing act. You should then use the earliest date to calculate your deadline.

Check if:

  • the last incident is definitely discrimination - if it’s not and this means you made a late claim, the court 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. If you use a later date for the deadline, the court could decide it’s not discrimination and you wouldn’t have time to make a new claim.

For example if the discrimination last happened on 12 March, the court must get your claim form by 11 September. If your deadline falls at the weekend or on a bank holiday, you'll need to take action on the last working day before the deadline.

The court will expect you to have tried to solve the problem out of court first. If you’re approaching the deadline for court action and you haven’t started a complaints process, you can start both at the same time.

If your landlord failed to make reasonable adjustments

If you asked for reasonable adjustments it can be hard to work out the date to start counting from. Check how to work out time limits for reasonable adjustments.

If you miss the deadline

You can sometimes take legal action after the deadline if the court agrees (this is called ‘making a late claim’). The court will only allow you to make a late claim if the judge thinks it’s fair - this is called being ‘just and equitable’. You shouldn’t rely on this though - it will depend on all the circumstances.

The court will look at the impact making a late claim would have on the case and if it would give you or the other side an advantage. They’ll also look at why your claim is late and how late it is.

For example, you might be able to take legal action if you were sick so you couldn’t take action earlier or if you were under 18 when the discrimination happened.

Act immediately as any delay could make it harder to get the court to accept your claim. Make sure you have evidence to prove the discrimination happened  - if you don’t, you won’t win your case.

The law about this is in section 118 of the Equality Act 2010.

If you’re taking action under Simple Procedure, you could submit the completed form to the court with an explanation of why you weren't able to submit the claim earlier under Section D1, but you should be prepared for the sheriff to dismiss the claim if they don’t think it’s just and equitable to allow it.

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