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Preparing and beginning to compile your case

At this point your ET1 has been lodged, you understand the stages through which your claim may go and you are broadly familiar with what lies ahead. You will probably have received the Respondent’s response, its ET3, so you know what view they are taking of your case. Now you need to prepare your case in more depth. In this Section we provide some detail about the legal concepts that you will encounter, about what you must prove before the Tribunal in order to succeed with your claim and to prepare the documents needed in your case.

What is discrimination? - Legal definitions of discrimination

In the ´Getting started´ chapter of this Guide, the What is discrimination? section described the various types of discrimination that apply in Tribunal proceedings were explained generally. You must also realise that the Tribunal must apply the law as set out in legislation and ultimately its focus will be on the words of the relevant statute. You must, therefore, become familiar with the legal definitions of discrimination.

Identifying a comparator

Where you allege any one of the following forms of discrimination you must identify either an actual or a hypothetical comparator:

This means that where your case is that you were less favourably treated, or were victimised, you must identify another person who was in a similar position to you and who didn’t suffer discrimination or victimisation. In Phillip’s and Mary’s cases they are comparing themselves to co-workers and other shortlisted applicants respectively. In his example, Phillip seeks to draw a comparison with colleagues who have the same or similar failings as him but who have not been dismissed.

It may be that such a person does not exist or has not been identified, in which case you must seek to construct a hypothetical comparator. So, for example, Mary could make a gender discrimination complaint on the basis of a hypothetical male comparator who had the same qualifications as her, and who would have been shortlisted, had he applied.

Very often you will be able to find an actual comparator or you will have a feeling that one exists. In fact, it is this knowledge that has probably prompted you to make the discrimination complaint in the first place. You can consider asking questions of the Respondent in the Questionnaire Procedure which unearths detail about any comparators. (You can also ask about these persons through the Notice for Discovery and Notice for Additional Information processes - see How to gather information from the Respondent.

Note that you do not need a comparator where you are alleging discrimination on the grounds of pregnancy or maternity leave. In that case you must simply prove that the decision of the Respondent was for the reasons of pregnancy or maternity leave.

Identifying pools of disadvantaged persons

Where you allege indirect discrimination you will be required to identify a pool of persons to which you belong who suffer a disadvantage because of the policy, criterion or practice that has been applied to you.

Let’s say in Mary’s case that the reason she was not shortlisted was because she didn’t meet a requirement of the job specification that she has worked on a full time basis in that line of work for three of the last four years. Such a requirement may be more difficult for women to meet because they may have come out of the workforce or reduced their hours to start a family. Mary would be required to explain how this rule would put women at a disadvantage. The case would then likely centre on whether this was a justifiable rule.

Beginning to compile your case

Having considered the type of discrimination that you say occurred in your case, and familiarised yourself with the relevant provisions of the appropriate statute, you should now consider very carefully how you will substantiate that claim of discrimination.

What form of discrimination am I claiming?

Below is a list of questions that you should ask of yourself which are designed to prompt you to think very systematically about your claim. Some of these questions you may not be able to answer until you receive further information or documentation from the Respondent. Click here for advice on obtaining information from the Respondent.

By the time the matters come to hearing you should be in a position to answer each one of them. In fact, in the course of the hearing, the evidence that is adduced and the submissions you make should address each of the relevant questions. The following questions can be used as a checklist to help you prove discrimination at the hearing:

Direct discrimination:

What is the less favourable treatment about which you complain?
Who is your comparator and are the circumstances of the comparator the same as, or at least not very different to, yours?
What leads you to believe that the less favourable treatment was on the ground of your gender etc…?
How do you propose to show to the Tribunal that it was on the ground of your gender etc…?
In particular where discrimination on the ground of religious belief, political opinion, disability, age, race or sexual orientation is alleged, how would the Respondent have been aware of that personal characteristic of yours?
Where the alleged direct discrimination is on the ground of disability, do you meet the statutory definition of a disabled person?

Indirect discrimination:

What is the provision, criterion or practice of which you complain?
In what way does it put persons of a particular gender etc… at a disadvantage?
What is the purpose of this provision or practice i.e. does it have an aim or purpose and is that purpose a legitimate one?
Is the provision, criterion or practice a proportionate means of achieving the legitimate aim?

Harassment:

What is the nature of the unwanted conduct and when and where did it occur?
Did the conduct have the purpose of harassing you and how do you know that?
Did the conduct have the effect of harassing you?
Did it violate your dignity and if so, in what way?
Did it create an intimidating, hostile, degrading, humiliating or offensive environment for you and if so, in what way?

Victimisation:

What is the less favourable treatment about which you complain?
Who is your comparator?
What makes you think that the less favourable treatment was related to a previous discrimination claim that you were involved in or in which you might become involved?
What was your involvement in that previous discrimination claim or what would be your involvement in any future discrimination claim?
Was your involvement in that previous discrimination claim or that other future claim, as the case may be, in good faith?

Disability-related discrimination:

Do you meet the statutory definition of a disabled person?
What is the less favourable treatment about which you complain?
Who is your non-disabled comparator and are the circumstances of the comparator the same as, or at least not very different to, yours?
What leads you to believe that it was on the ground of your disability?
How do you propose to show to the Tribunal that it was on the ground of your disability?
How would the Respondent have been aware that you were disabled?

Failure to make a reasonable adjustment:

Do you meet the statutory definition of a disabled person?
Is there a provision, criterion or practice applied by the Respondent that causes you a substantial disadvantage as a disabled person, in comparison to non-disabled persons?
Is there a physical feature of the Respondent’s workplace that causes you a substantial disadvantage as a disabled person, in comparison to non-disabled persons?
Are there reasonable steps that the Respondent can take to prevent those practice or those features, as the case may be, from having that effect?
What do you say those reasonable steps are?
Have you suggested such steps to the Respondent?
Has the Respondent ever asked you what steps you considered could be made to reduce the substantial disadvantage caused to you?

What documents do I need? - Documents already in your possession

Gather together the documents already available to you such as correspondence, contract details, wage slips, emails, notes, correspondence etc. Examine them to see to what extent they support your discrimination claim. One of the most important documents that will come into your possession is the Respondent’s response form, ET3, which you should receive within one month of the making of your claim.

If you need to obtain further documents and information from the Respondent then advice on how to obtain these is contained here. Note that the Respondent is entitled to seek copies of documents in your possession relating to your claim, with the exception of any legal correspondence between you and any legal adviser of yours.

What witnesses do I need? - Organising your witnesses

Decide whom you will need as a witness along with yourself and ensure that you they are willing to attend and testify. Obtain their dates of availability in case you agree to a hearing date which coincides with the holiday arrangements of a witness, for example. If a witness is unwilling to attend and you think that his or her presence is necessary you can apply to the Tribunal for a Witness Order. This compels the witness to attend and if s/he fails to do so, then they may be convicted and fined. (You might need to obtain a witness order for a witness who was willing to attend but whose employer would not release him or her without a witness order). Any application for a Witness Order needs to indicate:

the name and address of the witness,
why they are required as a witness,
the nature of the evidence s/he will give,
a statement that the witness declines to attend unless an order is made.

Click here for a sample letter requesting a Witness Order.

What will the witnesses say? - Witness statements

As you would expect, you may not tell a witness what to say, nor may you coach them in how they should say it. But it is permissible to talk to them and ask them what they intend to say. Take a note of the evidence that a witness will give to the Tribunal. Consider how it advances your claim and in particular decide whether it is sufficient.

Witness evidence might not shed the light on the issue that you thought and you may need to consider calling or not calling that witness but calling other ones. A witness´s evidence must relate to the allegations of discrimination. In Phillip’s case, for example, there would be little point in him calling a witness to give evidence as to the general mis-management of the firm or the poor relations on the shop floor without more specific evidence to support his allegations of racial discrimination.

A Tribunal may order the parties to produce witness statements, or indeed the parties might agree to produce them. In many cases where the Claimant is representing him or herself the Tribunal will not expect you to produce a witness statement and witness evidence will simply be taken as oral evidence in the hearing. It is a matter for the Tribunal to decide.

A witness statement is a document outlining in a witness’s own words the evidence which s/he intends to give before the Tribunal. The idea of a witness statement is to shorten the proceedings by reducing to writing the evidence that the witness would otherwise give orally. On appearing as a witness s/he is then asked to adopt the content of the statement as his or her evidence, thus making it evidence sworn on oath, by reading it aloud. S/he might be asked supplementary questions to the witness statement if, for example, there are matters which the witness hasn’t had an opportunity to address in the witness statement but this can only happen with the permission of the Tribunal. A witness can, of course, be cross-examined, on the contents of his or her witness statement.

You, as the Claimant, will be a witness so don’t forget that you too may be required to produce a witness statement.

If there are issues in the Respondent’s witnesses’ statements that you have not had an opportunity to address – maybe because you haven’t been aware of them before the witness statement was issued – then you may seek the permission of the Tribunal to file supplementary witness statements.

Supplementary witness statements

If a witness has completed and filed his or her witness statement but another matter subsequently arises which s/he has forgotten or omitted to address in the statement perhaps because s/he didn’t think it important, it is permissible for the witness to complete another statement – known as a supplementary statement – addressing those issues, provided the Tribunal allows it. Supplementary witness statements are usually used to address matters raised in the Respondent’s witnesses’ statements which a witness did not address in the original statement.

In the Case Management Discussion the Tribunal will usually stipulate a date by which any supplementary statements must be filed. Refer back to the Record of Proceedings of the Case Management Discussion to see if supplementary witness statements were allowed for.

My witnesses are complaining they are ´out of pocket´ - Expenses
You can claim for travel and subsistence expenses incurred by your witnesses, but the claim must be submitted within one calendar month of the conclusion of the hearing at the latest and sooner if possible. A witness expenses form should be obtained from the Tribunal Clerk on the day of hearing.

Up-to-date rates are available on the OITFET website.