How to Prove Discrimination at an Employment Tribunal: The Evidence That Wins

The Nine Protected Characteristics

The Equality Act 2010 protects you from discrimination based on:

1. Age
2. Disability
3. Gender reassignment
4. Marriage and civil partnership
5. Pregnancy and maternity
6. Race
7. Religion or belief
8. Sex
9. Sexual orientation

Discrimination claims are different from unfair dismissal in three important ways:

• No qualifying period — protection applies from day one
• Compensation is uncapped — and includes injury to feelings (the Vento bands, refreshed annually)
• Time limits start from the act — not the dismissal. Continuing acts extend the limitation period

The Shifting Burden of Proof — The Two-Stage Test

Under section 136 of the Equality Act 2010 and the Court of Appeal's 2025 decision in Leicester City Council v Parmar:

Stage 1 — You go first

You must establish facts from which the tribunal could decide that discrimination has occurred. This is more than mere assertion. A bare difference in treatment is not enough; you must show something more pointing to discrimination.

Stage 2 — The employer must explain

If you cross the Stage 1 threshold, the burden shifts to the employer. They must prove, on the balance of probabilities, that the treatment was not because of the protected characteristic.

If they cannot, the tribunal must find discrimination.

The Evidence That Builds Stage 1

1. An Actual Comparator

A real colleague without your protected characteristic, in materially the same circumstances, treated more favourably than you. Actual comparators are generally the strongest evidence available to a claimant.

What you need:

• Their name and protected characteristic status (so the tribunal can confirm the difference)
• Documents showing they were in the same role / facing similar conduct allegations / had similar performance
• Documents showing the favourable treatment — promotion letters, kept-in-role correspondence, less severe sanctions

Practical tip: comparators don't have to be identical. The test is whether there is "no material difference between the circumstances relating to each case" (s.23 EqA 2010). Reasonable similarity is enough.

2. A Hypothetical Comparator

If no actual comparator exists, you can construct one. The tribunal asks: would a person without the protected characteristic, in materially the same circumstances, have been treated the same way?

Hypothetical comparators are weaker but routinely accepted — especially where the employer's conduct is so unexplained that the tribunal can infer the protected characteristic was a factor.

3. Contemporaneous Records

Emails, meeting notes, performance reviews, internal complaint records — anything created at the time, before litigation was in contemplation. Three categories matter most:

• The disclosure moment — emails where you raised the protected characteristic (disability, pregnancy, religious observance, your race, your sexual orientation). Date and context matter.
• The treatment that followed — emails close in time to the disclosure showing changed behaviour
• The decision-maker's words — the language used in disciplinary correspondence, dismissal letters, meeting minutes

4. Statistical Evidence

In larger employers, a pattern can be compelling: men promoted while women in the same cohort are not; staff over 50 disproportionately selected for redundancy; complaints from staff sharing your characteristic dismissed at higher rates.

Request statistical data through disclosure. The tribunal can order the employer to produce it under Rule 33.

5. Witness Evidence from Colleagues

Colleagues willing to give statements about the workplace culture, comments overheard, or their own similar experiences. Witness statements are exchanged separately from the bundle but reference the bundle pages.

6. The Equality Act 2010 Statutory Code

The EHRC's Code of Practice on Employment is admissible and persuasive. Where the employer departs from the Code, that is evidence of unreasonable conduct.

Direct vs Indirect Discrimination — The Evidence Differs

Direct Discrimination (s.13 EqA 2010)

Less favourable treatment because of a protected characteristic. The evidence focuses on the reason why. Comparators and contemporaneous records matter most.

Indirect Discrimination (s.19 EqA 2010)

A neutral provision, criterion or practice (PCP) that puts people sharing your protected characteristic at a particular disadvantage. The evidence is different:

• The PCP itself (a policy, a rota, a dress code)
• Statistical evidence of the disadvantage to the protected group
• Your personal disadvantage from the PCP
• Evidence of any "less discriminatory means" the employer could have used

Harassment (s.26 EqA 2010)

Unwanted conduct related to a protected characteristic that violates dignity or creates a hostile environment. Evidence:

• The conduct itself (emails, recordings, witness accounts)
• Whether it was unwanted — did you object? When? To whom?
• The impact — your contemporaneous notes, GP records, sickness absence

Victimisation (s.27 EqA 2010)

Detriment because you did a protected act (raised a discrimination grievance, supported a colleague's claim). Evidence:

• The protected act — the grievance letter, the witness statement you gave
• The detriment — the disciplinary, the dismissal, the demotion
• The temporal link — how close were the two?

Disability Discrimination: The Extra Layer

Disability claims add a threshold question: are you disabled under s.6 EqA 2010? You need:

• GP letter or consultant report confirming the impairment
• Disability impact statement — your own description of the substantial adverse effect on day-to-day activities
• Duration evidence — the impairment has lasted, or is likely to last, 12 months or longer

For reasonable adjustments claims (s.20 EqA 2010), add:

• Evidence of the substantial disadvantage caused by the PCP / physical feature / failure to provide auxiliary aid
• Correspondence requesting the adjustment
• Evidence of what adjustments were reasonable for this employer to make (size, resources, sector practice)

What NOT to Include

• Without Prejudice settlement correspondence — legally privileged
• ACAS conciliation discussions — confidential by statute
• Emotional venting to friends — undermines credibility
• Social media posts mocking the employer — almost always counter-productive
• Recordings made without consent — admissible in limited circumstances but often excluded

The Schedule of Loss for a Discrimination Claim

Discrimination compensation includes heads unavailable in pure unfair dismissal:

• Past and future loss of earnings (uncapped)
• Injury to feelings — the Vento bands. The bands are uprated each April by Presidential Guidance addendum; check the most recent addendum on the Employment Tribunals' page on judiciary.uk for the figures in force at the date of your hearing. Stale Vento figures are a common criticism of unrepresented claimants' Schedules of Loss
• Aggravated damages where the conduct was high-handed or insulting
• Personal injury where the discrimination caused psychiatric injury (psychiatric report required)
• Interest on past loss and injury to feelings under the Industrial Tribunals (Interest on Awards in Discrimination Cases) Regulations 1996 (SI 1996/2803)

How BundleCreator Helps in Discrimination Cases

Discrimination bundles are typically larger than unfair dismissal bundles — more correspondence, more witnesses, more contextual material. BundleCreator's drag-and-drop section model lets you reorder evidence as the issues crystallise during case management. OCR is on by default — and in discrimination cases, the ability to search the bundle for specific phrases (the comment, the email subject line) is genuinely useful at the hearing.

Start your discrimination bundle →

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Related Articles

• The Complete Pillar Guide: How to Make an Employment Tribunal Bundle
• What Evidence Do I Need for an Unfair Dismissal Claim?
• How to Write an Employment Tribunal Witness Statement
• The Preliminary Hearing: What You Need to Prepare

Disclaimer: Discrimination claims are technical. The shifting burden of proof and the comparator analysis often turn on small details. This guide explains the evidence landscape; it is not advice on whether your specific facts cross the threshold. For case-specific advice contact the Equality Advisory and Support Service (0808 800 0082), Citizens Advice, ACAS, or a specialist employment lawyer.