Proving workplace discrimination at an employment tribunal is challenging but achievable with the right evidence. The law sets out a two-stage burden of proof that works differently from other types of civil claim. Understanding how it works helps you know what evidence to gather.
In discrimination cases, the burden of proof is split between the claimant and the respondent. First, the claimant must establish facts from which the tribunal could conclude that discrimination occurred. If the claimant does this, the burden shifts to the employer to provide a non-discriminatory explanation for their treatment of the claimant. If the employer cannot provide such an explanation, discrimination is established.
This means you do not need to prove that discrimination definitely occurred: you need to show enough to raise a prima facie case, at which point your employer must explain their actions.
Comparator evidence is often central to discrimination claims. This involves showing that someone without your protected characteristic, in a similar position, was treated more favourably. Identifying a real comparator: a colleague who was treated differently: is more powerful than a hypothetical one.
Statistical evidence can show a pattern of treatment affecting people with a particular protected characteristic. For example, if an employer has a poor record of promoting women or staff from a particular ethnic background, statistical data can support your case.
Direct evidence: such as emails or messages containing discriminatory comments: is highly valuable but relatively rare. More often, discrimination is inferred from the circumstances.
Contemporaneous records of the incidents you are complaining about, made at the time they happened, carry more weight than accounts written after the fact.
Witness evidence from colleagues who observed discriminatory treatment or who have been treated similarly can corroborate your account.
Evidence that your employer failed to follow their own equality, grievance, or disciplinary policies can support an inference of discrimination, particularly if their policies were applied inconsistently.
A subject access request under GDPR allows you to obtain personal data your employer holds about you, including emails and internal documents in which you are mentioned. This can sometimes reveal comments or discussions about you that you would not otherwise have access to.
Discrimination claims use a shifting burden of proof. You must establish facts from which discrimination can be inferred; the employer must then provide a non-discriminatory explanation. Comparator evidence, contemporaneous records, witness accounts, and statistical data are the most useful types of evidence. A subject access request can sometimes reveal helpful internal communications.
If you're ready to talk to a barrister about your case, the team at Barrister Connect is happy to help. Reach out to us here.