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Discrimination at work - getting evidence for an employment tribunal case

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 at work, and you’ve not been able to sort things out with your employer, you can make a claim in the employment tribunal.

If you make a discrimination claim, you will need to provide the tribunal with evidence that the discrimination happened.

Read this page to find out about what evidence is useful to support your discrimination case.

Preparing your case

Before making a claim in the employment tribunal, you need to think about what the tribunal needs to know to make a decision about your case. There are specific legal tests for the different discrimination claims. You need to show the court that you satisfy these tests to win your case.

If you don't have a representative, you may be able to get advice on how to prepare your case. An experienced adviser - for example, at a Citizens Advice Bureau - may be able to help you with some of the preparation.

What evidence do you need in a discrimination at work claim?

What evidence you need to provide when you make your claim will depend on the type of discrimination you’re complaining about.

How can you get evidence to support your claim?

You can do the following things to get evidence to support your claim:

  • ask your employer questions about what happened using the Advisory Conciliation and Arbitration Service (Acas) guidance and form
  • write your own statement or written account of what happened
  • obtain statements from witnesses - for example, if you have colleagues who can confirm the discrimination happened
  • obtain medical evidence that you need to support your claim - for example, to show that you're a disabled person if you're claiming disability discrimination
  • get useful material from sources other than your employer -  for example, in indirect discrimination cases, it’s important to get statistical information about the labour market.

Getting information when you’ve made your claim in the tribunal

Once you’ve made your claim in the employment tribunal, the tribunal rules set out ways to get more information about your case. You can:

  • ask your employer for documentary evidence - this is known as disclosure
  • ask for clarification of your employer’s case - this is known as requesting additional information
  • request written answers - both you and your employer can ask for answers to questions if they will help clarify any issue in the proceedings or assist the progress of the proceedings.

Your own witness statement

Your own witness statement will be your most important piece of evidence in the tribunal. It should cover all of the facts required to prove your legal claim. For example, in a case of direct race discrimination, your statement needs to describe the treatment that you received and show why it was less favourable when compared to the treatment of others of a different race.

Make sure you check your statement carefully to ensure it’s consistent with previous accounts you’ve given of what happened and with any supporting documents that you refer to. It could affect your credibility if there are inconsistencies between different documents you provide as evidence.

Evidence from witnesses

It's sometimes necessary to get evidence from witnesses to support your case. You should go through all the events relating to your case and identify any potential witnesses to these events.

If you identify someone who is a potential witness, it’s best to approach them informally, as people are often worried about becoming involved in legal proceedings. Even if someone doesn’t want to give evidence in support of your claim in the tribunal, talking to them may help you understand your case better. It may also highlight any weaknesses in your account of the discrimination or indicate other evidence which could be useful to support your case.

Is the witness' evidence relevant to your case?

It’s important to think about whether the evidence a witness can give is relevant to your case. Witnesses who can only say that something similar happened to them may not help a tribunal understand what happened in your case. It’s best to avoid using a character witness. The tribunal wants to know what happened and not whether you’re a nice person.

Witness statement and attending the hearing

Where a witness agrees to give evidence you they will need to provide a written statement in their own words to the tribunal, shortly before or at the hearing. The tribunal will expect them to attend the hearing to confirm the truth of their witness statement. If they don't attend the tribunal will place little or no value on their witness statement. The statement should be checked with other accounts to see if it’s consistent. You should always get permission from the witness before showing the statement to someone else.

Next steps

Other useful information

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.

Acas

Acas (Advisory, Conciliation and Arbitration Service) provides free and impartial information and advice on all aspects of workplace relations and employment law.

To speak to an adviser about your employment problem, call the Acas helpline on 0300 123 1100.

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