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Taking legal action about discrimination

This advice applies to Scotland

The Equality Act 2010 says you mustn’t be discriminated against because of who you are. It is unlawful to discriminate against someone under the terms of this Act. If you have experienced unlawful discrimination, you may be able to do something about it.

If you have been discriminated against you can make a claim in court for compensation or ask for a court order to make someone stop doing something that leads to unlawful discrimination.

This page explains the procedure or steps you need to follow when you want to make a discrimination claim in court. You may also want to check your claim with a solicitor. This may be expensive but depending on your circumstances legal aid may be available.

How to decide to make a discrimination claim

Preparation before you make a claim

Try to resolve your case without going to court

Going to court should always be a last resort. You should always consider alternatives to court action such as mediation before you take action to go to court because resolving a dispute out of court will always be cheaper.

It is generally unlawful to discriminate against someone because of who they are in relation to a 'protected characteristic'. The following characteristics are protected under the Equality Act. The protected characteristics are:

  • age
  • disability
  • gender reassignment
  • marriage and civil partnership (in the area of employment only)
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation.

Contacting the person or organisation against whom you want to make a claim

You need to inform the person or organisation against whom you want to take action why you want to take the action. You should do this by sending them a letter. Your letter should explain what happened to you and why you think unlawful discrimination has taken place. The person or organisation you want to take action against is called the defender.

The defender should then write back to you to explain their position. This will help you both decide if you can find a solution to the problem without going to court.

Step 1 – Do you have to go to court

Taking legal action in court can be a long and stressful process. It can also be expensive. It’s also important to keep in mind that if you lose the case in court, you may have to pay the legal costs of the other party.

If you’re thinking about taking court action, you should get advice from an experienced adviser. If you gather the following information it may help you to decide what to do next.

Step 2 - Check whether what has happened is discrimination

If you want to take court action you need to be reasonably sure that unlawful discrimination has taken place under the terms of the Equality Act.You can check what all the different types of discrimination are.

The main types of discrimination include the following:

  • direct discrimination occurs when someone treats another person less favourably than s/he treats or would treat others. Under the Equality Act 2010 a claim for unlawful discrimination is only possible when you can prove that the less favourable treatment relates to a characteristic about you that is protected. The less favourable treatment may also be because of your association with someone other than you who has a protected characteristic. For example, if you are a carer you may be discriminated against because of who you care for and how other people perceive them
  • indirect discrimination occurs when a provision, criterion or practice, which applies in the same way to everyone, puts a group with a particular protected characteristic at a disadvantage compared with a group who do not share that characteristic. If you want to make a claim about this you would have to show that one of your protected characteristics has resulted in you being placed at a disadvantage
  • harassment is unwanted conduct due to a protected characteristic. The unwanted conduct violates your dignity or creates an intimidating, hostile, degrading, humiliating or offensive environment for you
  • victimisation occurs if you're treated badly because you complain about discrimination or you help someone who has been discriminated against.

Not all of these types of discrimination are covered in all the areas of protection. You will need to check with an experienced adviser if your complaint is included in one of the areas. The areas of protection are education, housing, provision of goods and services and employment.

Step 3 - Getting information to help you support your discrimination claim

For general information about what you might want to do next you can phone the Equality Advisory Support Service (EASS) helpline.

Step 4 - Which court hears discrimination claims?

You can make a discrimination claim in the sheriff court.

Step 5 - Check the time limits for making your claim

There are strict time limits for going to court. You need to make your claim within six months of the act you’re complaining about.

If you’re complaining about behaviour over a period of time, the six month period begins at the end of the period.

If you’re complaining about a failure to do something, the six month period begins when the decision was made not to take any action. For example, if someone has failed to make reasonable changes to prevent unlawful discrimination, the six month period begins on the date that the decision was made not to make any changes.

The court can allow a claim outside the time limits, but only if it considers it just and equitable to do so.

You may be able to get legal aid to help pay for your court action. To get legal aid you need to meet the eligibility criteria. You can contact the Equality Advisory Support Service (EASS) who can help you find out if you can get legal aid.

You can also check if you are eligible on the Scottish Legal Aid Board website at www.slab.org.uk.

Starting your claim

There is a lot of information about taking action in court on the website of the Scottish Courts and Tribunals Service. It explains all the different processes that might need to be used depending on the circumstances of your case and how much compensation you may want to claim.

You start court proceedings by issuing a claim form. This can be done on paper at the local sheriff court or online at the Scottish Courts and Tribunal Service website. You will normally have to pay a fee. If your case is straightforward and below the financial value of £5,000 you can use a procedure called the simple procedure. You do not need to use a solicitor to start court action using this procedure. You can use a lay representative to help you.

If your claim is for a sum greater than £5,000 you should get legal advice as you may have to use a court procedure called the ordinary procedure.

Any claim for unlawful discrimination might be quite difficult to explain. You should therefore get some advice from an experienced adviser to help you to work out which type of procedure you are likely to have to use.

What you will need to put in your claim form

You will need to explain to the court and the defender why you are taking court action. There is a special section of the court form for you to fill in but if you are getting help from a solicitor this will be filled in for you.

You will have to explain what happened to you and why you think this is unlawful under the Equality Act.

What happens next?

Once you’ve made your claim in the court, what happens next depends on how the defender responds to your claim.

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