Gathering evidence about discrimination at work

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

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.

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.

Include:  

• 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.

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.

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.

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.

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.

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.

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.