How do tribunals decide if discrimination happened if there is no direct proof?

Direct evidence of discriminatory intention is rare, so tribunals typically infer discrimination from circumstantial evidence. This often involves comparing how you were treated against employees without your protected characteristic. Under the two-stage burden of proof, you must first establish facts from which discrimination can be inferred. Once this is done, the burden shifts to the employer to provide a non-discriminatory explanation for their actions.

What is a comparator and why is their treatment important?

A comparator is an employee who does not share your protected characteristic but was in not materially different circumstances. You should gather evidence showing how these individuals were treated in similar situations, particularly if they received more favourable treatment for similar conduct. This comparison helps demonstrate that the difference in treatment was linked to your protected characteristic rather than other factors.

What kinds of direct evidence should I gather for my claim?

You should collect emails, messages, or letters containing discriminatory language or references to your protected characteristic. It is also important to keep notes of conversations where discriminatory comments were made, including the date, time, and who was present. Contemporaneous notes are significantly more credible than retrospective accounts. Additionally, you should obtain copies of the employer's equality and diversity policies and any equal opportunities monitoring data you have access to.

What evidence do I need to show the impact of the discrimination?

Impact evidence supports the compensation element of your claim. You should collect medical records, GP fit notes, or occupational health reports if the discrimination caused health problems. This evidence is relevant to injury to feelings and personal injury. You should also keep records of any grievance you raised and the employer's response, along with evidence of financial losses such as loss of promotion, bonus, or job.

Why is the quality of evidence so important in these claims?

The quality of the evidential picture you present often determines whether a discrimination claim succeeds or fails. Because direct proof is uncommon, the strength of your circumstantial evidence, particularly regarding how comparators were treated, is critical. You must establish facts from which discrimination can be inferred to shift the burden of proof to the employer. Therefore, gathering comprehensive and credible documentation is essential for a strong case.

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evidence

Employment Law

Updated 2026-04-09

Evidence Checklist for a Workplace Discrimination Claim

Documents and records needed to support a discrimination claim under the Equality Act 2010.

Overview

Discrimination claims under the Equality Act 2010 often succeed or fail on the quality of the evidential picture you can present. Since direct evidence of discriminatory intention is rare, tribunals infer discrimination from circumstantial evidence — particularly from how comparators were treated. The two-stage burden of proof (s.136 Equality Act) means you must first establish facts from which discrimination can be inferred; the burden then shifts to the employer to provide a non-discriminatory explanation.

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Comparator Evidence

Evidence of how employees without your protected characteristic were treated in similar circumstances(Essential)

Under s.23 Equality Act, a comparator must be in not materially different circumstances

Examples of others who received more favourable treatment for similar conduct(Essential)

Data on workforce demographics if available (e.g. via a data subject access request)

Direct Evidence

Emails, messages, or letters containing discriminatory language or references to your protected characteristic(Essential)

Notes of any conversations where discriminatory comments were made (with date, time, who was present)(Essential)

Contemporaneous notes are significantly more credible than retrospective accounts

Employer's equality and diversity policies

Any equal opportunities monitoring data you have access to

Impact Evidence

Medical records, GP fit notes, or occupational health reports if the discrimination caused health problems

Relevant to injury to feelings and personal injury elements of compensation

Records of any grievance you raised about the discrimination and the employer's response(Essential)

Evidence of financial losses caused by the discrimination (e.g. loss of promotion, bonus, or job)

Related Guides

Related Rights

Official Resources

Equality and Human Rights Commission →ACAS — Discrimination at Work →

Frequently asked questions

How do tribunals decide if discrimination happened if there is no direct proof?: Direct evidence of discriminatory intention is rare, so tribunals typically infer discrimination from circumstantial evidence. This often involves comparing how you were treated against employees without your protected characteristic. Under the two-stage burden of proof, you must first establish facts from which discrimination can be inferred. Once this is done, the burden shifts to the employer to provide a non-discriminatory explanation for their actions.
What is a comparator and why is their treatment important?: A comparator is an employee who does not share your protected characteristic but was in not materially different circumstances. You should gather evidence showing how these individuals were treated in similar situations, particularly if they received more favourable treatment for similar conduct. This comparison helps demonstrate that the difference in treatment was linked to your protected characteristic rather than other factors.
What kinds of direct evidence should I gather for my claim?: You should collect emails, messages, or letters containing discriminatory language or references to your protected characteristic. It is also important to keep notes of conversations where discriminatory comments were made, including the date, time, and who was present. Contemporaneous notes are significantly more credible than retrospective accounts. Additionally, you should obtain copies of the employer's equality and diversity policies and any equal opportunities monitoring data you have access to.
What evidence do I need to show the impact of the discrimination?: Impact evidence supports the compensation element of your claim. You should collect medical records, GP fit notes, or occupational health reports if the discrimination caused health problems. This evidence is relevant to injury to feelings and personal injury. You should also keep records of any grievance you raised and the employer's response, along with evidence of financial losses such as loss of promotion, bonus, or job.
Why is the quality of evidence so important in these claims?: The quality of the evidential picture you present often determines whether a discrimination claim succeeds or fails. Because direct proof is uncommon, the strength of your circumstantial evidence, particularly regarding how comparators were treated, is critical. You must establish facts from which discrimination can be inferred to shift the burden of proof to the employer. Therefore, gathering comprehensive and credible documentation is essential for a strong case.