How to Assess the Strength of a Discrimination Claim Before You File

Workplace discrimination claims can arise from a wide range of circumstances and affect employees at every level of seniority. Before investing time and emotional energy in bringing a formal claim, it is worth taking a careful look at the strength of your case. Understanding how to assess it yourself, and when to seek specialist advice, can make a significant difference to the outcome.

What counts as unlawful discrimination

The Equality Act 2010 is the main piece of legislation governing workplace discrimination in England and Wales. It protects employees and workers from unfavourable treatment based on a set of protected characteristics. These include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

Discrimination can take several forms. Direct discrimination occurs where someone is treated less favourably because of a protected characteristic. Indirect discrimination occurs where a neutral rule or practice puts a group with a protected characteristic at a disadvantage compared to others. Harassment and victimisation are also forms of unlawful conduct under the Act.

The questions to ask yourself

Before assessing whether you have a strong claim, it is worth working through a series of basic questions. First, do you have a protected characteristic that is relevant to what happened? Second, were you treated less favourably than others, or than you would have been treated if you had a different characteristic? Third, is there a link between the treatment and the protected characteristic?

The link between the treatment and the protected characteristic is often the most difficult part of a discrimination claim to establish. The fact that an employer has acted unfairly, even seriously unfairly, does not automatically mean that the treatment was discriminatory in the legal sense. The question is why the employer acted as they did.

Our employment law barristers can assess the strength of your potential claim and advise on the best way forward.

The evidence available to you

Discrimination claims live or die on the evidence available. Written evidence, such as emails, letters, performance reviews, and internal communications, can be highly valuable. It can establish what was said, by whom, and in what context. Where discriminatory comments or attitudes can be evidenced in writing, the case is considerably stronger.

Where there is no direct written evidence of discriminatory intent, statistical evidence about how others with the same protected characteristic were treated can sometimes be relevant. Witness evidence from colleagues who were present at relevant events is also important.

The ACAS early conciliation requirement

Before a discrimination claim can be presented to an employment tribunal, ACAS early conciliation must be completed. This is a mandatory step that involves ACAS contacting both parties to explore whether the dispute can be resolved without a tribunal claim being made. Early conciliation is confidential and without prejudice.

Where early conciliation does not result in a settlement, ACAS issues a certificate confirming that the process has been completed. This certificate is required to proceed with a tribunal claim. The conciliation process does not affect the time limits for bringing a claim, but the rules on how time limits are calculated during the conciliation period are specific and need to be understood correctly.

The importance of early specialist advice

Discrimination claims are complex and the rules on time limits are strict. In most cases, a claim must be presented to the employment tribunal within three months of the act or acts of discrimination, subject to the ACAS conciliation requirement. Acting quickly and getting early specialist advice maximises your options and helps you understand whether the evidence you have is sufficient to support a viable claim.

You can read more about the employment tribunal process in our guide to unfair dismissal and employment tribunal claims.

You can arrange to get a quote for an initial conversation with one of our barristers through our contact page.