Assessing the merits of a discrimination claim
This advice applies to England, Wales and Scotland
Assessing the merits of a claim means working out how strong it is. It’s an ongoing process. This page helps you to do this and gives you some planning tools and guidance.
Assessing merits involves looking at whether you have enough evidence to prove the facts you need to prove to meet the legal test for discrimination.
This means you need to:
1. Identify your legal claims
This means identifying what type of discrimination you’re claiming and what has to be proved, for example if it’s direct discrimination you need to show less favourable treatment than a comparator.
For further guidance on identifying the claims and legal issues in a case see [Adviser Tool: Analysing your client’s discrimination problem].
2: Gather the facts about your discrimination claim
The “facts” are what you say happened, for example that you asked for training and were refused.
The next step is to apply the facts to those legal rights to identify:
- whether the facts show that you have arguable legal claims
- if you have an arguable claim, what the prospects of success are
3: Identify what evidence you have and how strong it is
Evidence is what you will use to prove a particular fact at a tribunal hearing. It might be ‘oral’ evidence, which is the spoken evidence given by a witness (including you) on oath to the tribunal to say that a particular fact is true. Documentary evidence includes emails, letters, minutes of meetings etc. For example you can tell the tribunal that you asked for training and show them an email refusing you.
In some cases you might need evidence from an expert, such as a doctor’s report to prove that you have a disability if you’re claiming disability discrimination.
You also need to think about the facts and evidence from your employer’s position. What do they say happened? Do they have evidence to prove it? Whose evidence is strongest?
You should check:
- what evidence is available to you — that you have or you can request
- Whether your evidence is strong enough to prove what you’re saying.
Witnesses on each side often give very different versions of what happened. When a tribunal is deciding who to believe they will think about:
- Whose evidence is most consistent eg who has given the same version of events repeatedly — at the time of events and in the tribunal. If you have submitted evidence for example in a document and then tell the tribunal something different, this will be a sign of weakness in your evidence
- Whose evidence is most consistent with the documents — if a document undermines what you say it could weaken your evidence. For example there are friendly text messages you sent outside of work hours to a colleague you say was sexually harassing you at the time. This will be a weakness in your evidence
- Whose evidence ‘sounds more believable’. Sometimes, what a witness is saying just won’t sound likely to be true. For example the tribunal might find it more believable that a small employer would dismiss an employee because she’s pregnant than a large employer who has several employees taking maternity leave and returning to work every year. In the latter case the employee might try to present more evidence, for example about negative comments being made about her pregnancy.
Making a case plan in a discrimination claim
It can be helpful to record the merits assessment you’ve done in writing. The case plan shown here is one way you could do that.
A case plan can also help you identify any evidence you need to get, for example you realise that you don’t have any evidence to prove a particular fact and need to ask the employer for it
If you are representing yourself at a hearing, the case plan can help you plan your cross examination. Where you can prove a fact through questioning witnesses in cross examination (eg an admission by a manager that they did not interview a relevant witness) then you can make a note on your case plan that facts can be proved by “Cross examination of Respondent’s witness Joe Bloggs ”.
Assessing whether you’re likely to win
Where facts are in dispute, it is rarely possible to say for certain that you will win a discrimination claim, because that will depends on who a tribunal believes and/or whether an employer’s defence is accepted.
However you can identify whether a claim will succeed if the tribunal prefers your version of the disputed facts, and, on your facts, the legal test for discrimination will be satisfied. This will depend on what type of claim you’re making, for example:
- Harassment cases are often met with a blanket denial that the incidents that are alleged to be harassment actually occurred. You therefore need to think about whose evidence about those incidents is most believable.
- Reasonable adjustments claims are often met by the employer not with an assertion that it made the adjustments, but that it was reasonable for it not to make them. Similarly, in indirect discrimination claims, the employer does not deny that the claimant and people who share the claimant’s protected characteristic are disadvantaged by the rule or practice at the centre of the claim, but on a defence that the rule or practice was justified. Reasonableness and justification are to be determined objectively by the tribunal, and so you need to assess whether an objective observer would have the same view as you about this. However, when assessing the strengths of the claim, it’s also worth trying to predict what the employer will say about its subjective reasons for treating you as it did, so that you can prepare to deal with, and limit, the employer’s potential defences. Is a tribunal likely to agree with you, or the employer, about what was reasonable or proportionate for the employer to do?
Picking which claims to run
If there are multiple incidents of discrimination you should try to be selective about the claims you run and only run the claims you have the best chance of succeeding with. If you ask the tribunal to look at too many other incidents and actions, then you could be criticised for the way you are making your claim.. You would also risk making your strong claims look weaker if you try to add in too much background about other events. It is important to be able to clearly explain its relevance.