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If you think you’ve been unfairly treated when applying for a job

This advice applies to England

If an employer treats you unfairly, it could be discrimination. This is the case if you’re applying for a new job or for a promotion. 

If you think you’ve been treated unfairly when applying for a job, look at things like the:

  • wording of the job advert - like if it asks for ‘dynamic, young’ applicants
  • job description - like if it says you need to be a recent graduate
  • arrangements for the interview - like if the venue isn’t accessible

You might be able to complain or take legal action if you think you were discriminated against when you applied for a job.

The main law that covers discrimination at work is the Equality Act 2010 - part 5 covers work.

Check the reason why you’re being treated unfairly

The law says you can't be treated unfairly or differently if it’s connected to who you are, like being a woman or being disabled. This is called having a ‘protected characteristic’ in the Equality Act 2010.

You also can’t be treated unfairly because:

  • you challenged discrimination before
  • of someone else’s protected characteristic
  • someone thinks you have a protected characteristic, but you don’t

It might not be obvious how the unfair treatment is linked to a protected characteristic. For example, your employer might only hire managers who can work evenings and weekends. This could be discrimination against women because they’re more likely to have childcare commitments that stop them working evenings and weekends.

You might be treated unfairly because of more than one protected characteristic - you can take action about more than one.

The protected characteristics are in sections 5 to 18 of the Equality Act and are covered in more detail in the EHRC Code of Practice on Employment, chapter 2. They are:

Age

The law covers you for discrimination about being:

  • young or old
  • in a particular age group - like 15-18, under 60
  • of a specific age - like 40 year olds

Disability

You’re covered for a disability you have now and any you’ve now recovered from. A disability could be physical or mental - you could be covered even if you don’t consider yourself disabled.

You should check if your disability is covered by the Equality Act.

Gender reassignment

The law covers  ‘gender reassignment’ - this means if you’re transgender.

You’re covered if you:

  • are planning to transition - you don’t need to have had any medical treatment
  • are in the process of transitioning
  • have already transitioned

If you identify as non-binary but you aren’t transitioning, you might be covered but the law is complicated. You’ll need to get specialist advice before you go any further.

Marriage and civil partnership

The law covers you if you’re legally married or in a civil partnership. You’re still protected if you’re separated but your marriage or civil partnership hasn’t been legally dissolved.

You’re not covered if you’re:

  • single
  • engaged to be married
  • divorced or your civil partnership has been dissolved
  • living with someone as a couple
  • widowed

Pregnancy and maternity

The law covers you if you’re pregnant and as long as you’re on maternity leave. This includes being on ordinary or additional maternity leave. 

You’re also covered if an employer makes a decision in your protected period that doesn’t affect you until after the period has ended. For example an employer might decide not to offer you a job but not tell you until after your maternity leave has ended.

If you’re discriminated against outside the protected period, you might be able to claim sex discrimination.

Race

This includes your:

  • colour - for example, if you're black or white
  • nationality
  • ethnic origin - for example if you’re a Romany Gypsy
  • national origin - this could be different from your nationality, for example if your family is from India but you have a British passport

Religion or belief

This includes:

  • belonging to an organised religion, for example if you’re Jewish
  • having a religious belief, for example you need to pray at certain times
  • having no religion, such as being an atheist
  • your philosophical beliefs, like being a pacifist

Sex

This is whether you’re a man or a woman.

If you identify as non-binary you might be covered but the law is complicated. You’ll need to get specialist advice before you go any further.

Sexual orientation

You’re covered if you’re gay, a lesbian, straight or bisexual.

If you’re treated unfairly because you complained about discrimination before

It could still be discrimination even if the unfair treatment isn’t about your protected characteristic. If you challenged or helped someone else challenge discrimination before it could be a type of discrimination called ‘victimisation’.

If your problem is about more than one protected characteristic

You can take action about more than one, or choose the ones you think you have the best evidence for.

If you take action about a combination of protected characteristics - you'll have to make your case for each one separately. For example, if you’re being discriminated against because you’re a black woman you’d have to list race discrimination and sex discrimination separately in your claim.

If the unfair treatment isn't to do with your protected characteristic

It could still be discrimination if you’re treated unfairly because:

  • of someone else’s protected characteristic
  • someone thinks you’ve got a protected characteristic, but you don’t
  • you’re treated unfairly for a different reason

You might still be able to make a formal complaint - like by writing to the employer or their HR department.

If you’re treated unfairly for a reason which isn't discrimination

You might still be able to make a formal complaint - like by writing to the employer or their HR department.

Job adverts and positive action

An employer can take action to encourage applications from some people. The law calls this 'positive action'.

If you’re applying for a job you might see an advert saying an employer encourages applications from people who have a particular protected characteristic.

The employer might be allowed to do this if, for example, they’re trying to address the fact that people with those protected characteristics are underrepresented in their workforce. However, they wouldn’t be allowed to limit applications to people with those characteristics because that would be direct discrimination.

If you see a job advert that you think was discrimination but didn’t apply because you were put off by the advert, you can only make a claim if you genuinely could have applied - like having the relevant skills and qualifications. The Equality and Human Rights Commission (EHRC) can take action about discrimination in job adverts, so you should report it to them on their website.

Check what type of discrimination it is

To take action against the employer, you’ll need to say what type of discrimination you experienced. Understanding this will help you find relevant evidence and build up your case.

You should already know which protected characteristic the discrimination is about. To work out what type it is you need to think about what’s happening to you that’s unfair.

Look at the situations described on this page and make a note of any type of discrimination that applies to you.

If more than one applies to you, note them all down. This helps you build a stronger case if you take legal action.

If an employer treated you worse than someone else - direct discrimination

If you’ve been treated worse because of a protected characteristic, it’s called direct discrimination. The legal term for being treated worse is being treated ‘less favourably’.

A job advert or job description could be discriminatory if it:

  • uses language which might imply a particular gender - like ‘salesman’
  • is aimed only at a certain community or age group

It could also be direct discrimination if:

  • only women are asked when they're planning to start a family
  • you're asked how old you are - unless you have to be of a particular age for a job, like to serve alcohol

Example

Megan has a telephone interview which goes very well. She’s invited to an assessment at the company’s office.

When she arrives, the person who was so friendly and encouraging to her over the phone says ‘Oh, we didn’t expect someone like you to turn up’ and is rather dismissive. She doesn't get the job. Megan thinks the change in his attitude is because she’s Asian.

Showing you were treated less favourably

To prove direct discrimination you’ll need to show that you were treated less favourably than someone without your protected characteristic was or would have been treated.

For example, to show that you didn’t get a job because of your race, you would need to show that someone with the same skills, experience or qualifications as you, but who was a different race, would have got the job.

You can do this by finding out more about the person who was given the job.

Show that the reason for your being treated less favourably was your protected characteristic

If you take action against the employer in a tribunal, you’ll have to show why you think your protected characteristic was the reason you were treated that way. You might have evidence to show this, for example you might know other people with your protected characteristic were treated the same way.

The employer will usually argue there was some other reason for treating you differently - like that the person they gave the job to met the job description better.

If the tribunal accepts your evidence that there might have been discrimination, the other side will need to prove that the way they treated you wasn’t because of the protected characteristic. 

An employer can’t usually argue that direct discrimination is justified, even if they think they have a good reason for it. There are only some exceptions to this, for example:

  • giving extra help to a disabled person
  • maternity rights for women
  • some kinds of direct age discrimination - like if the job involves driving or serving alcohol

Direct discrimination is covered in the EHRC Code of Practice on Employment, chapter 3.

Check if they can justify discrimination because of your age

An employer might be able to justify direct discrimination because of your age if they can show they have a good enough reason for it.

To have a good reason, they have to be able to show that treating you less favourably is a ‘proportionate means of achieving a legitimate aim’. There are 2 parts to showing this.

Firstly, they have to be able to show the aim is legitimate. A legitimate aim could be:

  • planning ahead - for example, choosing not to hire an older person for a job that requires years of training
  • health and safety - for example not allowing workers under 18 to use dangerous machinery

Secondly, your employer’s behaviour has to be proportionate - this means they can’t discriminate any more than they need to. If there are better and fairer ways of doing things, it will be more difficult to justify discrimination.

Your argument will be stronger if you can think of a way of meeting the legitimate aim that discriminates against you less.

If you're not sure if the discrimination is justified, get help from an adviser.

If the employer has a good reason for asking for applicants with a particular characteristic

Employers can discriminate if the nature of the work means that it’s an ‘occupational requirement’ for it be done by someone with a particular characteristic. For example, if they need:

  • a male careworker because the person being cared for objects to being given personal care by a woman
  • a religious education teacher in a faith school to have that particular faith

The employer must be able to show that they have a good reason for requiring a particular characteristic and that there’s no less discriminatory way of meeting that aim.

An employer can only use occupational requirement as a reason in very limited circumstances.

Occupational requirements are covered in the EHRC Code of Practice on Employment, chapter 13.

If you’re treated unfairly because of someone else’s protected characteristic

It could still be discrimination if you’re treated unfairly because of someone else’s protected characteristic. For example, you could be treated unfairly because your partner is disabled - this is called ‘discrimination by association’.

You can only claim this type of discrimination if the employer is treating you worse than someone who doesn’t have your connection to that person. This is called ‘direct discrimination’ in the law.

If you’re treated unfairly because someone thinks you’ve got a protected characteristic when you haven’t

It could still be discrimination if you’re treated unfairly because someone thinks you’ve got a protected characteristic - even if you haven’t. For example the employer might treat you unfairly if they think you’re gay, but you’re actually straight - this is called ‘discrimination by perception’.

You can only claim this type of discrimination if the employer is treating you worse than someone without the characteristic they think you have. This is called ‘direct discrimination’ in the law.

If a rule applies to everyone but has a worse effect on you - indirect discrimination

An employer might have a policy, rule or way of doing things that applies to everyone but if it puts you and people with your protected characteristic at a 'particular disadvantage' compared with others, it’s called indirect discrimination. A rule doesn’t have to be written down to be indirect discrimination.

Indirect discrimination can be difficult to spot because it’s not targeted at you. A rule might seem fair because it applies to everyone. But it could be indirect discrimination if it affects people with a protected characteristic more.

To prove indirect discrimination you’ll need to show:

  • there was actually a rule or way of doing things (called a ‘provision, criterion or practice’ in the law)
  • the provision, criterion or practice puts you at a particular disadvantage compared to others without your protected characteristic
  • it also puts other people with your protected characteristic at the same disadvantage

Sometimes employers indirectly discriminate against women by asking for specific experience within the last 5 years or saying all staff have to work full time. These rules affect women more than men because women are more likely to have breaks in their career, or need to work around childcare.

Example

Imogen wants to apply for a job but the job description says the successful applicant must be a ‘recent graduate’. Imogen has been doing similar work all her life. She’s 50 and went to university when she was 20.

The need to be a ‘recent graduate’ applies to all applicants. However, as older people are less likely to have graduated recently, Imogen could argue this is indirect age discrimination.

Check if there’s a good reason for the way you were treated

The potential employer might be able to justify indirect discrimination if they can show they have a good enough reason for it. To have a good reason, they have to be able to show that treating you less favourably is a ‘proportionate means of achieving a legitimate aim’. There are 2 parts to showing this. 

Firstly, they have to show the aim is legitimate. A legitimate aim could be:

  • the health and safety of other staff or customers 
  • making sure the business can run properly - for example, making sure other employees can take holiday

Secondly, the employer’s behaviour has to be proportionate - this means they can’t discriminate any more than they need to. If there are better and fairer ways of doing things, it will be more difficult to justify discrimination.

Your argument will be stronger if you can think of a way of meeting the legitimate aim that discriminates against you less. If you’re not sure whether the behaviour is proportionate you should think about:

  • how many people with your protected characteristic would be affected - a high number makes it harder to justify
  • how badly people are affected - for example, a job requirement which prevents people applying for a job will be harder to justify than a practice which causes job applicants a a small inconvenience

If you’re not sure if the discrimination is justified, get help from an adviser.

Example

Nuriye applies for a job which says it requires a certain qualification. She got an equivalent qualification in her home country but not the one specified in the job description.

She could argue that needing this could be indirect race discrimination against people of Turkish nationality who are more likely to have got their qualifications abroad.

The employer might be able to argue that the qualification they’re asking for is the industry standard and so they have a good reason to ask for it. 

Their legitimate aim is making sure they have people who can do the job. It has to be proportionate to require British qualifications to meet that aim. For example, the employer would have to show that they couldn’t accept her Turkish qualifications.

Indirect discrimination is covered in the EHRC Code of Practice on Employment, chapter 4.

If you’ve been harassed or bullied

It could be harassment if someone behaves in a way that:

  • offends you
  • makes you feel uncomfortable or distressed
  • intimidates you

This could include things like:

  • abusive comments or jokes
  • insulting gestures or facial expressions
  • offensive comments on social media

Once you’ve checked if any other types of discrimination apply to you, you can check if your problem is harassment.

Harassment is covered in the EHRC Code of Practice on Employment, chapter 7.

If the employer didn’t make the changes you need because you’re disabled (reasonable adjustments)

Employers need to make changes you need during the recruitment process or to the job itself because of your disability. This is called the ‘duty to make reasonable adjustments’. For example, they might need to provide an application form in a different format.

An employer can ask whether you have a disability which means that they need to make adjustments so you can take part in their selection process. For example, if their interview venue isn’t accessible, they should take steps to make sure it is, or change the venue.

If you’re offered a job, you can ask for reasonable adjustments before you start. It might be discrimination if the employer refuses to make reasonable adjustments to the recruitment process or to the job itself. 

The employer only has to make adjustments if:

  • they will avoid you being disadvantaged in the recruitment process or the job, and
  • it’s ‘reasonable’ for them to make those adjustments - that depends on things like the size of the business and the resources they have

Check what changes you can ask an employer to make.

The duty to make reasonable adjustments is covered in the EHRC Code of Practice on Employment, chapter 6.

You should also think about whether what happened was discrimination arising from your disability.

If the discrimination is because of something connected to your disability

This isn't the same as direct discrimination where you're treated unfairly because of the disability itself.

You don’t need to prove that you were treated worse than someone else. You just need to show you were treated unfavourably because of something connected to your disability, like that you need time off for hospital treatment. The law calls this being treated ‘unfavourably because of something arising in consequence of disability’.

It won't be discrimination if they didn’t know about your disability.

It could still be discrimination if you’d reasonably expect they should have known about your disability.

It’s also still discrimination if they knew you were disabled but didn’t know exactly how your disability affects you.

Example

Mo told an interviewer that he hasn’t worked for a year because of mental ill health. He’s well enough to work now and his GP agrees. The employer tells him they're not going to offer him the job because they think his sickness record means he’ll be unreliable.

This is discrimination arising from disability because the employer didn’t offer him the job because of something arising from his disability - his sickness record with his previous employer.

Mo can take action against the employer for discrimination because of something arising from his disability.

Check if there’s a good reason for the way you were treated

The potential employer might be able to justify their behaviour if they can show they have a good enough reason for it. To have a good reason, they have to be able to show that the way you were treated is a ‘proportionate means of achieving a legitimate aim’. There are 2 parts to showing this.

Firstly, they have to show the aim is legitimate. A legitimate aim could be:

  • the health and safety of other staff or customers 
  • making sure the business can run properly

Secondly, the employer’s behaviour has to be proportionate - this means they can’t discriminate any more than they need to. If there are better and fairer ways of doing things, it will be more difficult to justify discrimination.

Example

Casey applies for a job as a care worker working with vulnerable children. She’s offered the job on condition that she passes a medical. At the medical, she tells the doctor that she’s been diagnosed with epilepsy.

She’s had some seizures while working with children in her previous job. The employer withdraws the job offer. This is discrimination arising from disability. The reason she didn’t get the job was not her epilepsy but the fact that she can’t work alone with children safely at the moment because her seizures are not yet under control.

The employer could argue that protecting vulnerable children is a legitimate aim. They could say Casey might not be able to do that if she’s having seizures.

This would only be a good enough reason if the employer could show that there was a real risk to the children which they couldn't avoid in other ways - like closely supervising Casey's work to start with.

If you’re not sure whether they can justify their actions, get help from an adviser.

Discrimination arising from a disability is covered in the EHRC Code of Practice on Employment, chapter 5.

You should also think about whether what happened was a failure to make a reasonable adjustment.

If you’re being treated unfairly because you challenged discrimination before - victimisation

Victimisation is when you’re treated unfairly because you complained about discrimination - like if you’re offered a job but then it’s withdrawn because your previous employer says in your reference that you complained that you were discriminated against. 

It doesn’t matter if your complaint against your old employer was rejected as long as you made it in good faith.

It’s also victimisation if you helped someone else complain about discrimination and are treated unfairly because of that.

Victimisation is covered in the EHRC Code of Practice on Employment, chapter 9.

Dealing with questions about your health

Before they offer you a job, an employer isn’t generally allowed to ask you questions about your health or disability - including sickness absence. They can ask questions about whether you can do essential parts of the job - like asking if there's anything preventing you from lifting if the job involves lifting.

You don't have to say anything about your disability when applying unless you need adjustments made in the recruitment or interview process. If you do tell your employer about a disability they can't refuse to give you the job because of your disability.

They could turn you down if your disability means you can't do the job but only if they first consider all of the adjustments that could be made to support you to do the job.

You won’t be able to take action about discrimination just because you were asked questions that shouldn’t have been asked. The EHRC can take action so you could report it to them.

An employer can only ask you questions about your health in certain situations, including:

  • to monitor if they’re attracting applicants with disabilities
  • to decide if you can benefit from positive action measures they have - like a guaranteed interview scheme
  • if the job needs someone with a particular disability where this is a key part of the job

In all these situations, the employer needs to make clear why they’re asking these questions and what they’ll do with the information. If they’re monitoring diversity, the monitoring form should be separate from the main application form.

Example

An employer wants to recruit a deaf project worker to work with deaf children. They can show it’s an occupational requirement for the job. They can ask you questions about your disability under the Equality Act 2010 to check that you meet the requirement to be deaf.

Once an employer has decided to offer you a job, they can make the offer subject to passing a medical. For more information, check the EHRC’s guidance on dealing with questions about your health when you’re applying for a job.

If you’re discriminated against because of your pregnancy or maternity

It’s unlawful for an employer to treat you unfairly because of something related to your pregnancy or maternity. For example:

  • not changing your interview time from 9am despite you saying that you suffer from morning sickness
  • making you do a selection task that puts you or your child at risk - for example, heavy lifting or holding the interview in a very hot room

You’ll need to show the employer knew you were pregnant.

Example

Petra has a telephone interview which goes very well. She’s invited to an assessment at the company’s office.

When she arrives, the person who was so friendly and encouraging to her over the phone is rather dismissive. Petra thinks the change in his attitude is because she’s clearly pregnant. She doesn't get the job.

She’s told that she doesn’t have the right experience but she thinks she does. She thinks she didn’t get the job because of her pregnancy.

If you’re not sure if the employer is treating you unfairly because of your pregnancy, you can find out more about pregnancy and maternity discrimination.

Pregnancy and maternity discrimination is covered in the EHRC Code of Practice on Employment, chapter 8.

You can also get help from an adviser

If you decide to take action

If you think you have a case, you can take action. You might be able to get compensation or negotiate with the employer to give you the job but an employment tribunal can’t order the employer to give you the job.

Make a note of the discrimination as soon as you can - like if you’re asked at interview if you’re planning to start a family, write down exactly what was said while you remember the details. If you don’t get the job and want to complain or take legal action, that could be part of the evidence you gather to show you were discriminated against.

Complain to the employer

If you don’t get the job and you think this is because you were discriminated against, you should first ask for feedback about why they decided not to give you the job. Most employers will give you feedback.

If they don’t or you’re not satisfied with their feedback, you can complain to a more senior person in the company or the company’s HR department if it has one.

Put your complaint in writing and keep a copy of it in case you decide to take legal action. Be prepared for them simply to ignore you.

Your complaint should include:

  • a brief description of what happened
  • why you think it was discriminatory
  • what you want them to do about it

For example, you could ask them to:

  • make sure their interview venues are accessible
  • reconsider their policies or procedures for future applicants
  • give you an apology
  • pay you compensation
  • give you another interview if they’re still recruiting

You could try asking for information on, for example, how many people they shortlisted and how many of them had your protected characteristic.

Get help from an adviser to write your complaint if you need it.

If complaining to the employer doesn’t work and you want to take the matter further, you’ll have to make a claim to an employment tribunal. It’s difficult to prove discrimination in recruitment because the employer can give many reasons for not offering you the job. Make sure you gather as much evidence as you can.

Gather evidence

If you’re not satisfied with the employer’s reply and want to take legal action, make sure you have enough evidence first.

Evidence could include:

  • the job advert
  • the job description
  • your notes on what happened at the interview
  • any correspondence you’ve had with the company since then - like your complaint and their reply

You might also need other evidence depending on the type of claim you’re making.

Keep a diary or note of how you were treated and any reply you had when you complained to the employer.

Evidence in a direct discrimination claim

Your diary could include:

  • what happened - including who did or said what
  • the reasons the employer gave for their actions or that they couldn’t explain them when you challenged them
  • if they said or did things which made you think they were discriminating - like asking when you plan to start a family

If you think someone with the same work history as you but who didn’t have your protected characteristic would have got the job, ask the employer what qualifications, experience or other skills the person who they gave the job to has. The person you’re comparing yourself with is called a ‘comparator’.

If they had more relevant experience than you it will be harder to show direct discrimination. You might be able to find a comparator by asking the employer for information on who applied.

Evidence in an indirect discrimination claim

Your diary should include:

  • what it is that put you at a disadvantage - like the requirement for 5 years’ experience or that you be a recent graduate
  • an explanation of how that requirement disadvantages you
  • how it affects other people with your protected characteristic

You should also consider whether the employer can justify the requirement. The law says an employer can do this by showing:

  1. they had a good business reason for the requirement that affects you - the law calls this a ‘legitimate aim’
  2. the requirement was a reasonable way of meeting their business needs and that outweighed the impact it had on you - the law calls this a ‘proportionate means’

Try to think of reasons the 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.

Evidence in a harassment claim

Your diary should include:

  • details of who said what, when and where
  • any witnesses or evidence of what happened - like an email or voicemail
  • that the behaviour was unwanted and related to a protected characteristic
  • how it made you feel - like if you felt degraded, intimidated or humiliated
  • if you made a complaint or said something

If you saw a doctor because of what happened, you should get a copy of the entry in your GP notes.

Evidence in a victimisation claim

Your diary should include details of what the employer said or did and when.

For example, if an employer withdraws a job offer after getting a reference from your previous employer, you should say that you complained about discrimination in your previous job, when you were offered the new job and when it was withdrawn. Include any reason the employer gave.

You’ll need to show that the reason the job offer was withdrawn could have been because you complained about discrimination in your previous job.

Try to find out why the employer withdrew the offer and think about what evidence would help you show their reasons weren’t true. For example, if they say they realised you didn’t have the right experience, you could find out what experience the successful candidate had.

Evidence if the employer didn’t make reasonable adjustments

If you want to make a claim, you need be able to say what your disability is, how it affects your day-to-day activities and:

  • what caused you a disadvantage
  • how that disadvantage is linked to your disability
  • what changes you think the employer should make
  • how that change will stop you being at a disadvantage

Once you’ve proved these things the employer will have to show why it wasn’t reasonable for them to make any of those adjustments.

Get all the facts you have on:

  • what you thought might help (the ‘reasonable adjustment’)
  • whether you got a reply and what it was
  • what happened next, for example if you asked again or asked for something different

It’s a good idea to write down the difficulties you have without the adjustment.

Evidence if you’ve been discriminated against because of something connected to your disability

You’ll need evidence that you’ve been treated unfavourably - like a rejection letter or a note of a phone call. If it’s not obvious you’ll also need evidence that the reason you were treated unfavourably was connected to your disability.

For example, if you had to do a written test and were rejected because your handwriting was poor because you have dyspraxia, you might need a letter from your GP to show that your disability was the reason for your poor handwriting.

You’ll also need to show that they knew or ought to have known that you had a disability. Make a note of when you told them and keep a copy of any written evidence - like your job application.

The law says an employer can justify what they’ve done if it’s a ‘proportionate means of achieving a legitimate aim’.

Try to think of reasons the 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.

Evidence in a pregnancy and maternity claim

Try to find out the employer’s reasons for not offering you the job. Try to think of any other evidence that could help you show the real reason was your pregnancy.

For example, try to find out who got the job. If they didn’t meet the job description as well as you that could help show there was some other reason you didn’t get the job - like your pregnancy.

How to get evidence from the employer

The employer is likely to have access to a lot of documents and information which you don’t. This includes information about the gender or racial breakdown of the applicants.

The best way to gather evidence from the employer is to write to them to ask for it. You’ll then have proof that you asked. If the employer doesn’t reply and you make a tribunal claim, the tribunal will take account of the fact that they didn’t reply and might draw the conclusion that they did discriminate against you.

If the employer won’t give you the information you asked for, you can take more formal steps.

Some employers publish equality information about their workforce that you can use. Public sector employers, like councils, have specific duties under the Public Sector Equality Duty to monitor and publish equality information about their workforce. You should be able to find this information online or by asking the HR department.

Send the employer a list of questions

You can ask the 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 the employer to explain what they did. For example, why they didn’t change the interview venue so that it was accessible.

If you need help writing your questions, use the guidance and template on the Acas website.

Make sure you keep a copy of the questions and any correspondence you send to the 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.

The 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.

The 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 the employer to reply. It can also take account of the fact that they haven’t replied or that their replies are evasive.

Ask to see the information the person discriminating holds on you

Write to the 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.

Make a Freedom of Information Act request

If the employer is a public body, like a local authority, you can ask for:

  • a copy of the information they have on how many people of a certain age or racial group applied for jobs
  • information about the employer that would help you to make your argument, for example, how many have been appointed in the last 2 years

Find out how to ask for information under the Freedom of Information Act 2000 on GOV.UK.

Work out how much compensation you could get

A tribunal can order the employer to pay you compensation for:

  • any money you've lost because of the discrimination - this is called ‘financial loss’
  • hurt or distress you've suffered because of the discrimination - this is called ‘injury to feelings’
  • a personal injury, such as depression or a physical injury, caused by the discrimination
  • particularly bad behaviour by your employer - this is called ‘aggravated damages’ 

Your financial loss could be what you would have earned if you had got the job. As a starting point, work out what your losses would be if it takes you a year to find a job which pays the same as the job you applied for.

You’ll have to take off any money you get from your current job if you have one. For example, if your current job pays £20,000 and the one you applied for was £22,000 the difference (and your financial loss for a year) would be £2,000.

To claim ‘injury to feelings’, you’ll need to say how the discrimination made you feel. You can claim compensation for injury to feelings.

Ask your family, friends, colleagues, medical professionals or support workers if they’ll be witnesses to how the discrimination affected you.

If you saw your GP about the impact of the discrimination on you, you could ask your GP for a report - check if they’ll charge you a fee for this.

If the discrimination happened when you applied for a job with a new employer and you want to take legal action, you must do so within 3 months less one day of when the discrimination took place - like when they decided not to give you the job or make an adjustment for you. Find out more about taking legal action.

If the discrimination happened when you applied for a promotion, you don’t need to leave your job if you want to take action. You must start legal action within 3 months less one day of when the discrimination took place - like when they decided not to give you the job.

Your employer shouldn’t start treating you differently because you’ve taken action - if they do, it might be victimisation.

Find out more about deciding what to do next

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