Step 4: Check how strong your case is
Building your case
You should make sure that you:
have identified your legal rights
have shown how those legal rights have been breached
know the elements that must be established to prove you’ve got a legal right - this is different for each type of discrimination
You should write down the different elements of the case and add the facts that you have to support them. You can then write down whether you have any evidence to support those facts - like an email saying why you’re being treated in a certain way. Check how to gather evidence if you're not sure.
You should assess how strong your case is and reconsider this when you get any evidence from the other side.
Doing this will also help you work out what extra evidence you might need to get to be able to prove your case and identify any gaps or weaknesses in your case.
If you’re claiming more than one type of discrimination
You’ll need to assess the strength of each one. Sometimes you'll be able to use the same evidence to show the different types of discrimination. For example, you might be able to use the same facts and evidence to show a claim of discrimination arising from disability as well as a failure to make reasonable adjustments.
Check if there’s any defence to the discrimination
Once you’ve matched the evidence you have to the elements of each type of discrimination, you should check whether your landlord, property manager or controller will try to defend the case even if you can prove that the discrimination happened.
For indirect discrimination and discrimination arising from disability they could say that the action is justified as it is a ‘proportionate means of achieving a legitimate aim’. Indirect discrimination is covered in section 19 of the Equality Act 2010 and discrimination arising from disability is covered in section 15 of the Equality Act 2010.
For reasonable adjustments they could say what you’ve asked for isn’t ‘reasonable’ or that they don’t have to make the adjustments you’ve asked for. Reasonable adjustments are covered by sections 20, 36 and Schedule 4 of the Equality Act 2010.
You should think about anything that will weaken their argument, for example if there was a more proportionate or legitimate way to achieve their aim or if their reasons have been inconsistent so don’t seem credible.
If you identify gaps in your evidence or you think having looked at your evidence and that of your landlord, property manager or controller that they have a stronger case you might decide to gather some more evidence and then reassess your case.
Check how strong your evidence is
You don’t always need to have lots of evidence to have a strong case - it’s usually more important that the evidence is of a good quality.
Strong evidence could include evidence that is:
- from someone who witnessed the discriminatory incident
- from someone who isn’t linked to either party
- factual - like a letter giving a poor reason for refusing a reasonable adjustment
- put together at the time or soon after the incident
Be careful about making claims or relying on incidents that you don't have evidence to support - there is a risk that you might have to cover the some or all of the other side's costs if you've wasted court time because your claim wasn't very strong or was bound to fail. In Simple Procedure cases the legal costs you can be ordered to pay if you lose are capped if the claim is under £3000 so you could choose to argue weaker arguments. There is also risk that it could distract the court’s attention from your stronger arguments. Get help from an adviser if you need help to do this.