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What you need to show the employment tribunal in a discrimination at work claim

This advice applies to Wales

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 need to show the tribunal that you’ve been unlawfully discriminated against.

Read this page to find out more about what you need to show the tribunal if you want your claim to succeed.

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 employment tribunal 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 employment tribunal 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
  • marriage and civil partnership
  • 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 employment tribunal you’ve been discriminated against?

When you make a discrimination claim, you need to provide the employment tribunal with evidence from which it could decide that discrimination has happened. Only then is the employer required to show that discrimination has not happened. The obligation on you to provide this evidence is called the initial burden of proof. When you've done so, the burden of proof shifts to your employer.

Satisfying the burden of proof - could it be discrimination?

To satisfy your burden of proof, you need to show the tribunal facts from which the tribunal could decide, without any other explanation from your employer, that you've been discriminated against. If you can’t show these facts, your claim won’t succeed.

For example, if you’re a woman and complain about direct sex discrimination you must show the tribunal evidence that you've been treated worse than a man was treated or would have been treated in comparable circumstances, and that the difference in treatment is capable of being because you’re a woman.

The employer’s explanation for your treatment

If you’ve provided facts from which the tribunal could decide that discrimination has happened, they must find in your favour unless your employer can show that it didn't happen. The burden of proof is said to shift to your employer. They must then prove that there was a non-discriminatory reason for your treatment.

Although this looks like a two stage process, the tribunal will in fact hear all of the evidence from both sides and then decide about burden of proof.

Example

You think you've been passed over for promotion because you're a woman. You believe that there's institutional discrimination against women in your employer’s company.

You will need to show that there's an initial case which, in the absence of an adequate explanation to the contrary, shows the reason for the treatment is because of sex. To do this, as well as your own statement of evidence, you will need to provide as much supporting evidence as you can.

You will need to ask the employer to disclose their records of the interviews for the senior post. If these documents show that you scored higher than the man who got the job, you will be close to meeting the initial burden of proof. But you will still need to give the tribunal any extra evidence you can to show that the reason he was promoted over you is because you're a woman and he's a man. The decision might be random, unreasonable or irrational but not based on sex.

You could ask your employer to provide a list of promotions within the company within the last 5 years, broken down by gender and showing length of service. You could also ask for a list showing the levels of seniority reached by men and women on leaving the company. You would also need the employer to disclose the gender balance of the company. If this information showed that men were generally being promoted more quickly, or reaching more senior levels, than comparable women, the tribunal could conclude that discrimination has happened. It would then decide that the burden of proof has shifted to your employer to prove that there's been no discrimination.

You would find it much harder to meet the initial burden of proof if the records of the interviews show that the man who got the job did better than you.

If you’ve sent questions to your employer about your treatment

To help you decide if you’ve been discriminated against, you can send questions to your employer about your treatment. The Advisory Conciliation and Arbitration Service (Acas) has produced guidance to help you with this.

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

Does the tribunal have to be certain you’ve been discriminated against for your claim to succeed?

For your claim to succeed, the employment tribunal needs to believe that it’s more likely than not you’ve been discriminated against. The law says the tribunal needs to be satisfied on the balance of probabilities that discrimination has taken place.  

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 at

Acas

Acas works with both employers and employees to solve workplace problems.

You can phone the Acas helpline on: 0300 123 1100 and speak to an adviser about your employment problems. The helpline is open 8am-8pm Monday to Friday and 9am-1pm on Saturdays.

You can find useful information about how to sort out work-place problems on the Acas website at

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