Skip to content Skip to footer

What do you need to show the court in a discrimination claim?

This advice applies to Scotland

The law which says you mustn’t be discriminated against is called the Equality Act 2010. If you’ve been discriminated against, and you’ve not been able to sort things out with the person or organisation who’s discriminated against you, you can make a claim in the civil courts.

If you make a discrimination claim, you need to show the court that you’ve been unlawfully discriminated against.

Read this page to find out more about what you need to show the court if you want your claim to succeed. This page doesn't cover discrimination in the workplace.

Top tips

Check the legal test you have to meet so you are clear what facts are relevant.

Be clear on the facts that show discrimination - they will be carefully considered by the court before the burden of proof shifts.

Write down the facts as soon as possible so you can remember them later.

Showing unlawful discrimination

When you make a discrimination claim, you need to show the court evidence that you’ve been treated unfairly and that the reason you’ve been treated unfairly is because of a protected characteristic.

The protected characteristics in the Equality Act are:

  • age
  • gender reassignment
  • disability
  • pregnancy and maternity
  • race
  • religion or belief
  • sex
  • sexual orientation.

There are different legal tests that apply to your claim depending on what type of discrimination you’re complaining about. If you want to your claim to succeed you need to show you satisfy these tests.

How do you show the court you’ve been discriminated against?

When you make a discrimination claim, you need to provide the court with evidence from which it could decide that the discrimination took place. The obligation on you to provide this evidence is called the burden of proof.

Satisfying the burden of proof

To satisfy your burden of proof, you need to show the court facts from which it could decide without any other explanation from the person or organisation you're taking action against, that you've been discriminated against. This will mean establishing that the facts in your case meet the basic legal tests that apply to the type of discrimination you’re complaining about under the Equality Act.

The defendant’s explanation for your treatment

The person or organisation you’re taking action against is called the defendant.

If the court thinks you’ve shown enough facts to meet the basic legal test, it will conclude you’ve been discriminated against unless the defendant can provide a good enough explanation for your treatment. The burden of proof is said to shift to the defendant. They would have to show that your treatment had nothing to do with a protected characteristic.

Example

A GP practice refuses to register you because you’re an Irish Traveller. This is direct discrimination because of race. For your case to succeed, you must be able to show that the practice refused to register you and that the reason they refused is because you're an Irish Traveller. This means you would have to show you've been treated differently and worse than someone else in a similar situation to you who's not an Irish Traveller.

To do this you could produce evidence that the surgery is advertising as taking on new patients and that other people who aren’t Irish Travellers have been able to register. The behaviour of the staff could also be useful evidence, if - for example, they were rude or unpleasant towards you. There may have been witnesses to this. You might also be able to show that other Travellers have been treated unfairly as well by the practice.

Taken together these facts would suggest that the reason you were unable to register is because you’re an Irish Traveller.

If the practice can’t produce a good enough explanation for their decision not to register you which has nothing to do with your race, the court could conclude that you’ve been discriminated against.

If you’ve sent questions to the defendant about your treatment

To help you decide if you’ve been discriminated against, you can send questions to the defendant about your treatment. The government has produced guidance to help you with this.

If you’ve sent the defendant questions about your treatment, the court can take their responses, or their failure to respond, into account when deciding whether you’ve been discriminated against.

Does the court have to be certain you’ve experienced a discriminatory act for your claim to succeed?

For your claim to succeed, the court needs to believe that it’s more likely than not that you have suffered an act of discrimination. The law says the court needs to be satisfied on the balance of probabilities that discrimination has taken place.

Next steps

Equality Advisory Support Service (EASS)

If you have experienced discrimination, you can get help from the EASS discrimination helpline.

Equality and Human Rights Commission (EHRC)

You can find useful information about discrimination on the EHRC website at

Did this advice help?