This legal update is part of our Proving Discrimination at Work series. This series is designed by Employment Partner Emma Sangeelee and Associate George Orman to support Senior Executives who believe they are being discriminated against at work, providing some top tips for proving discrimination, how to raise an effective grievance, specific things to look out for if you believe you’re being paid less than you should be, how to scrutinise your employer’s discretionary decision making, a focussed look at issues in relation to ill health and sexual harassment, and how to negotiate the best settlement. Subscribe to our blog list to receive our future legal updates to your mailbox, or visit our discrimination page to find out more.

One of the most common concerns clients raise when considering a discrimination claim, is that they believe they have been discriminated against, but worry they cannot prove it. Alongside this, one of the most important lessons I have learned in litigating discrimination claims over the past 17 years, is that Employment Tribunals piece together the truth based on what you can prove. With this in mind, here are some ‘top tips’ if you think you are being discriminated against at work:

  1. Clearly identify the discriminatory act or omission. It is common for there to have been an on-going state of affairs before individuals consider raising their concerns with their employer, and not everything that has happened will be discriminatory. Limiting your complaint to acts of discrimination rather than taking a ‘kitchen sink’ approach will help you to articulate matters clearly and effectively and will help to avoid ‘own goals’.
  2. Collate evidence that will support your claims at an early stage. Each case is different. However, in all cases, it is more difficult to recollect dates of relevant emails and meetings substantially after the event. If you collate evidence as you go (taking care to comply with GDPR and your employer’s IT security requirements), then this will help you to raise your concerns when the time comes, it will immediately lend weight to your claims, and will stand you in good stead in the event that you no longer have access to relevant evidence (for example if you are suspended or dismissed).
  3. Anticipate the defence of your employer or the decision maker you may be accusing of discrimination. Almost always allegations are denied in the first instance, with individuals accused of discrimination offering an alternative version of events. They often seek to justify discriminatory decision making by calling your performance into question. Collate evidence to negate this; for example any praise received or positive feedback from colleagues or clients. If you are considering raising matters informally with your manager, or if you are informing your manager about ill health for example, do so over email or even in a text or Whatsapp, and keep a contemporaneous note of relevant oral discussions.
  4. Raise your concerns in writing at an early stage. It can be daunting to raise concerns formally with your employer and allegations of discrimination are serious and should not be made recklessly. However, if you are clear in your mind that your concerns are genuine (taking into account the above tips) then you should raise them, and you are protected from being victimised for doing so. Therefore raising your concerns can actually put you in a stronger position than if you suffer in silence and often a victimisation claim is easier to prove.
  5. Consider making a Data Subject Access Request within reasonable and proportionate parameters to tailor your request to the scope of your grievance. This may throw up documents where you are mentioned by name or obvious inference that you would not otherwise have access to.
  6. Remember your time limits to preserve your negotiating position. Claims for discrimination should be asserted via ACAS Early Conciliation within three months of the act complained of. Where there is a series of discriminatory acts, the time limit runs from the latest act. However, it is not always straight forward whether or not an act is part of a series or a consequence of an earlier act and so a cautious approach should be taken.
  7. Get legal expenses insurance cover for legal costs arising from employment disputes. This is often included in home contents and buildings cover and usually kicks in from the issue of Employment Tribunal proceedings. This can make all the difference to your ability to pursue your claims, and sends a clear message that if your complaints are not resolved or settled, you have the will and the means to enforce your rights in the Tribunal.

If you are concerned that you are being discriminated against, please contact Emma Sangeelee or any member of the Employment team. We are experts in this field and we are here to help.


Please note that this blog is provided for general information only. It is not intended to amount to advice on which you should rely. You must obtain professional or specialist advice before taking, or refraining from, any action on the basis of the content of this blog.

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