Gathering evidence about discrimination at work
If you haven’t checked already, find out if your problem is discrimination before you take action.
The first thing you need to do is 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.
Get help if you aren’t sure how to gather the right facts and evidence.
Make a record of what happened
To make sure you remember what happened, make notes about:
- the date the discrimination happened - or each time it happened if it was more than once
- the names of anyone involved, like the colleague or manager who 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 - check if you’re not sure
- how the discrimination affected you, for example the emotional impact of being harassed or missing out on a promotion
- receipts for extra expenses - like interview costs if you were dismissed and have been looking for a job
Collecting your evidence
Evidence can be documents, your own description of what happened or a witness’s version of events.
Try to gather anything that helps explain the situation - like letters or emails.
Look for evidence on social media if you use it to communicate with people from work. For example, a threatening message on Facebook could be evidence of discrimination. Print out the messages if you can, or take a picture or screenshot.
You should also make sure your employer has done everything they’re supposed to do. To do this, get copies of your contract and any internal policies on things like bullying or equal opportunities.
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 if they’re happy for you to give their name when you complain.
You don’t have to have a witness. Your own evidence can be enough.
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 has 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 tribunal and, if you do, help you to prepare your case. Your list could look like:
What type of discrimination it was
1 June 2018
John Wilson told me the company wouldn’t agree to reduce my workload because I had anxiety and depression
A failure to make reasonable adjustments for my disability
22 July 2018
I was dismissed because I could not meet my targets
A failure to make reasonable adjustments for my disability and discrimination for a reason arising from my disability
14 August 2018
In my appeal hearing the managing director said I couldn’t cope with the pressure and I’d only let the rest of the team down if they took me back
Harassment on the grounds of disability
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. Your employer will probably say they have another reason, for example, they might try to show that the person who got a promotion had more relevant skills.
Look for evidence that your employer has:
- ignored their own policy - 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 that make you think they’re discriminating - write down what happened
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 makes things worse or more difficult for people with your protected characteristic compared with people who don’t have it. The law calls this policy or rule a ‘provision, criterion or practice’.
Show how it affects other people
You’ll need to show that the policy or rule seems to be neutral but has a worse effect on people with your protected characteristic. It doesn’t have to affect everyone with your characteristic.
For example, you could argue that a rule which says you must work full time discriminates against women with young children. This discriminates against women because they’re more likely than men to need to work part time because of childcare.
You could ask your employer:
- how many men and women they employ
- how many men and women work part time or job share
- how many men and women have asked for flexible working
Get evidence about your employer’s reason for the discrimination
Your employer 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 your grievance letter if you haven’t already written one. 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 your employer could have met their aim without discriminating against you. Try to think of ways your employer could have done things differently.
For example, your employer says they have customers from 9am to 5pm and that’s why staff have to work those hours. You could ask why your employer won’t consider job sharing or part-time work. You might be able to gather evidence to show that few customers arrive between 9am and 9.30am and other staff start at 9am, so it wouldn't matter if you started at 9.30am.
Indirect discrimination is covered in section 19 of Equality Act 2010.
If you’re 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.
- 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 taking any medication, make a note of how often you take it 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 antidepressants 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.’
Gather evidence to prove your disability, for example:
- letters from medical professionals like doctors or physiotherapists that confirm your disability
- evidence from people who help you, like a care worker or family member
If your employer 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 your employer why they disagree.
You might be able to prove 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.
If your employer still disagrees, you would have to make a claim to an employment tribunal. The tribunal will listen to what you say but you’ll have a much stronger case if you can show them medical evidence.
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 in an employment tribunal.
Make sure the doctor will be able to give you the report in time for when you need it, for example when you need to submit documents to the tribunal.
Example letter to ask for a medical report
Dear Dr Gibbons,
I’m a patient of yours at Forest View surgery.
I’m planning to bring an employment tribunal claim against my employer Jungle Books Ltd.
My claim is about disability discrimination. I need to get medical evidence to show my employer and the tribunal that my arthritis meets the Equality Act definition of disability.
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. If you can’t do it by this date, please let me know when you can send it. Let me know if this won’t be possible.
Thank you for your help.
Proving whether your employer knew you were disabled
This will depend on the type of discrimination claim you have. You will have to prove your employer knew you were disabled if you:
- are asking for reasonable adjustments
- were discriminated against because of something arising from your disability
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 your employer for changes to your workplace to help you do your job
- your fit notes
- notes of any meetings where you told your employer about it
- your job application if you told them on that
If you only told them orally, write down who you told and when.
If you didn't tell your employer about your disability, you might be able to prove they should have known anyway. 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.
Sam suddenly starts struggling with his workload despite having had no problems in the past 5 years. He’s had 15 days off in the last 6 months and his sick notes say ‘muscle pain and fatigue’. He’s told his manager he’s been referred to a hospital for tests.
All of that could mean Sam’s employer ought to have realised he might have a disability.
If your employer hasn’t made reasonable adjustments for your disability
Get all the facts you have on:
- what changes you asked for (the ‘reasonable adjustment’) and when - check what changes your employer should make for your disability 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 your employer says 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, try to find out what the cost would be and your employer’s financial situation.
It’s a good idea to write down the difficulties you have without the adjustment and how the changes you wanted would have helped. Your evidence will be stronger if you can get this in writing from a doctor.
Think about whether there were any other changes your employer could have made that you didn’t ask for at the time. You can still mention these if you decide to go to tribunal or you could suggest them to your employer.
Reasonable adjustments are covered in sections 20, 21 and Schedule 8 Equality Act 2010.
If you’re being discriminated against because of something ‘arising from your disability’
Get evidence to show that the reason you’ve been treated the way you have was connected to your disability.
For example, if you were dismissed because of your sickness record you’ll need to show that your sickness was related to your disability, not another illness or reason. You could do this by getting copies of your fit notes, your employer’s record of your sickness or a letter from your GP.
Your employer will probably say they had a good reason for doing what they did (they might call it a ‘proportionate means of achieving a legitimate aim’).
Try to think of reasons your employer 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.
Marion’s employer dismissed her because she was off sick for a long time as a result of her disability. Her manager says they needed to cover Marion’s work, so they had to employ someone new to replace her.
Marion explains that they could have employed someone temporarily until she was able to return to work.
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.
If you saw a doctor, you should ask for a copy of the notes your GP made.
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 someone who used to work for the same employer who went through the same thing. Make them aware that they might be asked about what they witnessed in a tribunal 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.
Tribunals don't expect you to have a witness to support you - most harassment isn't witnessed.
Harassment is covered in section 26 of the Equality Act 2010.
If you’ve been victimised
Victimisation means you've been treated worse because you made a complaint about discrimination. It might also be because you helped someone else with their complaint about discrimination.
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 employer’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 warning a few days after your complaint, or that your employer didn’t follow their own policies
- examples of how other people were treated in similar cases - you can ask your employer about this if you need more information
If you made a statement to back up your colleague’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 you're discriminated against because of pregnancy or maternity
First, you need to show you were treated unfavourably. Then you need to set out facts which could lead a tribunal to think you were discriminated against because of your pregnancy or maternity.
This could include evidence that your employer hasn’t followed their policies, that they’ve given different reasons for what they’ve done at different times, or that they didn’t reply to your letters asking for an explanation.
For example if you’ve been sacked for poor performance but you think it was really because of your pregnancy, you might be able to show things like:
- your employer didn’t take any disciplinary action against you
- they didn’t follow their own disciplinary procedure
- your previous appraisals have been good
- you’ve never had any complaints about your performance
- you do the same or more work than other people in your workplace
The evidence you’d need could include copies of your appraisals and your employer’s dismissal policy. In your complaint, you can say that you had good appraisals and that your employer didn’t follow their disciplinary procedure.
How to get evidence from your employer
Your employer is likely to have access to a lot of documents and information which you don’t. This includes HR records and information about the gender or racial breakdown of the workforce.
Some employers publish equality information about their workforce that you can use. Public sector employers, like councils, have specific duties in Scotland to monitor and publish equality information about their workforce. You should be able to find this information online or by asking the HR department.
The best way to gather evidence that isn’t publicly available from your employer is to ask for it in writing. You’ll then have proof that you asked. If your employer doesn’t reply and you make a tribunal claim, the tribunal might take account of the fact that they didn’t reply.
When you ask for evidence, your employer will know you’re preparing to make a complaint. Before you ask them for evidence, make sure you're certain you want to complain about the discrimination. It's often a good idea to ask for evidence when you start your complaint. Collect any evidence you can get on your own before this, and be ready to show it to your employer.
Send your employer a list of questions
You can ask your employer questions about what happened. This can help you decide if they discriminated against you and if you want to take legal action about it.
You should ask your employer to explain what they did. For example, why they didn’t get you equipment to help with your disability.
Make sure you keep a copy of the questions and any correspondence you send your employer. If you send the questions by post, it’s best to ask the Post Office for proof of postage - you might need to show when you sent them.
Your employer should respond within a reasonable time. It’s useful to ask them to write back to you within a specified time - like 21 days.
Your employer doesn’t have to answer the questions but it’s in their interest to. You could point out that it might help resolve the problem without the need for any further action.
If you make a claim to an employment tribunal, the tribunal can order your employer to reply. It can also take account of the fact that they haven’t replied or that their replies aren’t clear.
Ask to see the information your employer has about you
Write to your employer saying you’re making a ‘subject access request’ under section 45 of the Data Protection Act 2018. You can ask for things like your HR file.
Keep a copy of your letter or email. If you’re sending a letter, ask the Post Office for proof of postage - you might need to show when you sent your request.
Find out what you can ask for on the Information Commissioner’s website - they’re an independent organisation working on information and data protection.
Make a Freedom of Information Act request
If your employer is a public body, like a local authority, you can ask for:
- a copy of the information they hold about you - you can do this as well as asking for this information in other ways
- information about your employer that would help you to make your argument, for example statistics about diversity
Find out how to ask for information under the Freedom of Information Act 2000 on GOV.UK.
Assess your evidence
When you've got your evidence, think about how well you can prove each part of your argument. For example, you might have very strong evidence about your direct discrimination claim, but less evidence about your manager harassing you.
You might prefer not to take forward the parts which you have less evidence for, and focus on the areas you can prove more easily.
If you think you might be able to claim for another reason, check if it could be discrimination.
When you’ve collected your evidence, you’ll need to think about how strong it is.
It will be weak if it:
- doesn’t show that the problem is discrimination under the Equality Act 2010
- is contradictory or unreliable, for example if witnesses say different things and there’s no good reason for the contradiction
You’ll also need to think about the evidence your employer is likely to have that might contradict your side of things.
Azeem wants to complain that he was harassed at work. He doesn’t need lots of witnesses but he does need to think about any evidence his employer might have.
Azeem thinks his manager might have notes of a meeting in which she asked if everything was OK at work and he said it was. This could be used to contradict his argument that he was unhappy at work because of harassment.
Try to work out which side has the strongest evidence. If you think your employer has stronger evidence than you then you probably won’t be able to prove your case.
If you do decide to make a complaint, you can use the opportunity to ask your employer for evidence which will help you to decide how strong your case is, if you’re considering taking it further.
If you decide to go to tribunal you’ll need to think again about your evidence to make sure you have what you need to support your case. As your case progresses, more evidence might become available - make sure you regularly consider whether continuing with your case is the best approach.
When you’ve identified your claims and evidence, you can:
- complain to your employer about the discrimination - either informally or by raising a grievance
- complain to a tribunal
Find out how to take action about your discrimination problem.