This article applies to England, Wales and Scotland. Northern Ireland has separate legislation and a separate tribunal system.
In brief: This guide helps you understand how a tribunal approaches a discrimination claim, so you can think about your own case in the same terms. It breaks the claim into seven parts (the protected basis, the type of discrimination, the specific allegations, the legal link that type requires, the employer's answer, time limits, and remedy), explains what the tribunal is asking in each, and says which evidence relates to it. Because the tribunal generally decides those parts one at a time, a claim can succeed on some allegations and not others. It draws on the Equality Act 2010, current case law and Yerty's analysis of published tribunal decisions.
Last updated: 4 September 2026
By Yerty | Based on the Equality Act 2010, the EHRC Employment Statutory Code of Practice, the Employment Tribunal Procedure Rules 2024 as amended, appellate case law to September 2026, and Yerty's analysis of published tribunal decisions. Law checked 4 September 2026.
You believe you were discriminated against and you want to know how a tribunal would decide whether you were. It is unlikely to decide it as one question. It generally breaks a claim into parts, decides each on its own, and puts the answers together. This guide explains what those parts are, what the tribunal is asking in each, and what you are generally expected to establish.
Important: This guide provides general information about employment law in England, Wales and Scotland. Yerty is not a law firm and does not provide legal advice. It explains what the tribunal decides and why; it does not assess whether your evidence proves discrimination.
Breaking a Discrimination Claim into Its Parts
A useful way to understand the tribunal's decision is to break the claim into seven parts. This is Yerty's way of organising the questions the Equality Act 2010 asks; it is not an official procedure, but a list of issues will usually separate most of these questions explicitly.
| Part | The question | What it covers |
|---|---|---|
| Protected basis | Which characteristic, or which protected act, does the claim rest on? | The nine characteristics; pregnancy and maternity as its own route; a protected act for victimisation |
| Type of discrimination | Which of the seven statutory routes is alleged? | Direct, pregnancy and maternity, indirect, harassment, victimisation, and for disability only, discrimination arising from disability and failure to make reasonable adjustments |
| Allegations | What, specifically, was done or not done, and when? | Each act or omission, dated, and who is said to have done it |
| Legal link and proof | What does this type of claim require the tribunal to connect or find? | "Because of", "related to", a protected act, a disadvantage, a "something arising"; and the burden of proof rule where reason is disputed |
| Employer's answer | What can the employer argue for that type of claim? | Non-discriminatory reason, justification, knowledge, all reasonable steps |
| Time | Is each allegation in time? | 3 or 6 months, continuing acts, just and equitable extension |
| Remedy | If any allegation succeeds, what follows? | Declaration, compensation, recommendation |
Not every claim needs every part in the same way, and depending on the specifics of your case some may matter more or less.
Thinking about a case in these parts has two uses. It broadly reflects how tribunals reason, so the list of issues is less of a surprise. And it can show where a case is thin: strong on what happened but unclear about which type of discrimination it is, or about what, beyond unfair treatment, makes the legal link that type requires.
What Questions Does the Tribunal Have to Answer?
This is a map of the questions, not a fixed running order. Some are decided at a preliminary hearing and some at the final hearing, and a case can end on any one of them. Who has to establish what differs from question to question, and each section below says.
| Question | What it is really asking | Evidence that usually matters |
|---|---|---|
| Which protected basis? | Which characteristic, or protected act; do you have it, or are you covered by perception or association? | Often undisputed; disability status is one important example of a basis that can need separate determination |
| Which type of discrimination, for each allegation? | Which section's test applies | The claim form and the list of issues |
| What happened? | Did each alleged act occur as described? | Documents, witnesses, contemporaneous messages |
| Is the legal link made out? | Depends on the type: because of, related to, protected act, disadvantage, something arising; the burden of proof rule where the reason is disputed | Treatment of others, departures from procedure, what was said, the PCP and its effect |
| Does the employer's answer succeed? | Justification, knowledge, no duty, all reasonable steps, depending on the type | Employer's evidence on aims, decisions and steps taken |
| Is each allegation in time? | Section 123 | Dates; Acas early conciliation dates |
| What remedy? | Loss and injury to feelings on the allegations upheld | Loss evidence |
The next seven sections take the parts in turn.
Part 1: What Is the Protected Basis?
Section 4 of the Equality Act lists nine protected characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation. Most claims rest on one of them; unfair treatment with no connection to a characteristic is not discrimination, however unfair. Victimisation is the exception: it rests on a protected act (complaining about discrimination, giving evidence, or similar), and you do not need any characteristic to bring it.
You do not always need the characteristic yourself. For most characteristics, direct discrimination also covers treatment because of a characteristic the employer wrongly perceives you to have, or because of someone else's (a disabled child, a partner's religion). Those perception and association routes do not apply to marriage and civil partnership or to pregnancy and maternity. Section 19A extends indirect discrimination to someone who does not share the characteristic but suffers substantively the same disadvantage.
Sometimes the existence or scope of the protected basis is itself disputed: whether a belief qualifies, when a pregnancy protected period began, and above all whether a claimant is disabled, which is a separate question under section 6 that the tribunal may have to decide first. Our guide to how tribunals decide disability discrimination claims covers that, and our guide to the protected characteristics covers which one fits which situation.
Part 2: Which Type of Discrimination?
The Act provides seven statutory routes for a workplace claim, which lawyers can refer to as "heads of claim". Each has its own test and its own answer from the employer, and the same events can be pleaded under more than one.
| Type of claim | Core question | Comparator needed? | The employer's answer |
|---|---|---|---|
| Direct discrimination, s.13 | Were you treated less favourably because of a protected characteristic (yours; or, for most characteristics, perceived or someone else's)? | Yes: an actual or hypothetical person without the characteristic in circumstances not materially different | The characteristic played no part; for age only, objective justification |
| Pregnancy and maternity discrimination, s.18 | During the protected period, were you treated unfavourably because of pregnancy, pregnancy-related illness, compulsory maternity leave or exercising maternity leave rights? | No | The treatment was for another reason |
| Indirect discrimination, s.19 (and s.19A) | Did an apparently neutral provision, criterion or practice, applied to people with and without your characteristic, put people sharing it at a particular disadvantage, and you? | A group comparison, not an individual comparator | Objective justification: a proportionate means of achieving a legitimate aim |
| Discrimination arising from disability, s.15 | Were you treated unfavourably because of something arising from your disability? | No | Lack of knowledge of the disability; objective justification |
| Failure to make reasonable adjustments, ss.20–21 | Did a practice, physical feature or missing aid put you at a substantial disadvantage, and was a reasonable step not taken? | No | The duty did not arise; no reasonable step was available |
| Harassment, s.26 | Was there unwanted conduct related to a characteristic with the purpose or effect of violating your dignity or creating a hostile environment? | No | Not related to the characteristic; not the prohibited purpose or effect |
| Victimisation, s.27 | Were you subjected to a detriment because you did a protected act? | No | No protected act; the detriment was for another reason; a false allegation made in bad faith |
Section 18 is a route of its own: it needs no comparator, and section 13 does not apply to treatment for those reasons in the protected period. Section 26 harassment does not cover pregnancy and maternity or marriage and civil partnership; that does not make such conduct lawful, but pregnancy-related treatment falls under section 18 or the sex discrimination provisions depending on the facts, and marriage-related treatment may be direct or indirect discrimination if those tests are met. Indirect discrimination does not use pregnancy and maternity as the characteristic, though indirect sex discrimination can apply in pregnancy situations. Section 15 and adjustments exist only for disability. The type matters because it shapes everything that follows: what facts are needed, whether a comparator is needed, and what the employer can argue.
Part 3: What Are the Allegations?
The tribunal decides discrimination act by act. A claim form describes what happened; by the final hearing the list of issues has turned it into numbered allegations, each with a date, each assigned to a type of discrimination, each naming who is said to have done it.
The list of issues is a case-management document. The pleaded case, starting with the ET1 and any permitted amendments, sets the scope; the list identifies the questions the tribunal is to determine within it. A genuinely new claim may need permission to amend; clarifying an existing one is a different matter (Khakimov v Amova Asset Management UK Ltd [2026] EAT 47).
The Employment Appeal Tribunal restated in May 2026 why this act-by-act analysis is required. In Clifton Diocese v Parker [2026] EAT 68 a tribunal had found discrimination by looking at the employer's conduct as a whole. The EAT held that was an error: the tribunal must identify each act complained of, identify who is said to have discriminated, and ask what it is about the facts of that act that could support an inference that the characteristic was the reason. Grossly unfair conduct is not, without more, evidence of discrimination.
Each allegation is therefore generally decided on its own. A tribunal can uphold some and dismiss others, even where they form part of the same overall workplace dispute.
Part 4: What Legal Link Does This Type of Claim Require?
Each type of claim requires the tribunal to connect the treatment to the protected basis in a different way. This is a part that is easy to misunderstand, because "was my characteristic the reason?" is the question for direct discrimination only.
| Type | The link the tribunal has to find |
|---|---|
| Direct, s.13 | Why did the employer treat you that way? Was the characteristic a reason, consciously or not? |
| Pregnancy and maternity, s.18 | Was the unfavourable treatment because of one of the statutory pregnancy or maternity reasons, in the protected period? |
| Indirect, s.19 / s.19A | Did the PCP put the group and you at a particular disadvantage? No discriminatory reason or motive is needed |
| Discrimination arising from disability, s.15 | What was the reason for the treatment, and did that "something" arise from your disability? |
| Reasonable adjustments, ss.20–21 | Did the practice, feature or missing aid cause a substantial disadvantage, and was a reasonable step not taken? No discriminatory reason is needed |
| Harassment, s.26 | Was the conduct related to the characteristic, and did it have the prohibited purpose or effect? |
| Victimisation, s.27 | Was the protected act a reason for the detriment? |
The burden of proof, where the reason is disputed
Where the link turns on why the employer acted (direct discrimination, victimisation, and the reason question in s.15), section 136 governs how the tribunal decides it. The rule is a two-stage legal test, not a two-stage hearing. The tribunal hears all the evidence, then asks at stage one whether there are facts from which it could conclude, absent any other explanation, that the Act was contravened. If there are, at stage two the employer has to show that it did not contravene the Act, usually by proving a non-discriminatory reason. The Supreme Court in Royal Mail Group v Efobi [2021] UKSC 33 confirmed that the 2010 wording did not change this approach.
What stage one needs:
- Something more than a difference in treatment and a difference in characteristic. That is not enough on its own (Madarassy v Nomura International [2007] EWCA Civ 33). Unfairness, poor process and hostility can form part of the factual picture, but the mere absence of a satisfactory explanation from the employer is not by itself enough at stage one. The tribunal looks for something from which the characteristic can be inferred as the reason: how others without the characteristic were treated, departures from the employer's normal procedure, what was said, inconsistency in the explanations given.
- The inference must attach to the act and the person. Parker is the current authority: for each allegation, what is it about this act by this person that could support the inference? Bad conduct by others on other occasions does not shift the burden on an allegation they were not involved in.
A comparator is a tool for this question in direct discrimination: would someone without your characteristic, in circumstances not materially different (section 23), have been treated the same? The comparator can be real or hypothetical, and in practice the hypothetical comparator and the reason-why question tend to merge. Discrimination arising from disability, reasonable adjustments, harassment and victimisation need no comparator; indirect discrimination compares groups.
Section 136 is a tool for deciding disputed reasons, not a ritual in every case. Where the tribunal can make a clear positive finding about the actual reason for the treatment, it may decide the point directly without relying on the burden shift (Laffy v WKCIC Group [2026] EAT 90, restating earlier authority). And it does not decide whether you have the protected basis; where disability status is disputed, that generally remains for you to establish.
Part 5: What Can the Employer Argue?
There is no single defence to discrimination. Each type has its own answer, and who carries the legal burden depends on the issue: justification, the knowledge defences and the all-reasonable-steps defence are for the employer to prove; most of the rest are contested elements of the claim.
| Typical respondent answer | Applies to | What it involves |
|---|---|---|
| The characteristic (or protected act) was not the reason | Direct; s.18; victimisation | A non-discriminatory reason, on the evidence; a legal burden only once stage one of s.136 is met |
| Objective justification | Indirect; s.15; direct age discrimination only | A legitimate aim, and that the treatment was a proportionate means of achieving it |
| Lack of knowledge | s.15 (of the disability); adjustments (of the disability and the likely disadvantage) | It did not know and could not reasonably have been expected to know |
| No duty, or no reasonable step | Adjustments | No substantial disadvantage; or no step it was reasonable to have to take |
| Not the prohibited purpose or effect | Harassment | Judged by your perception, the other circumstances, and whether it was reasonable for the conduct to have that effect |
| All reasonable steps | The employer's liability for acts of its employees, s.109(4) | It took all reasonable steps to prevent the employee doing that thing, or things of that description |
The last row is not a general defence. It is the employer's answer to being made liable for what one of its employees did in the course of employment (section 109(1)); a principal is liable for an agent's authorised acts under section 109(2) without that defence, and the individual can remain liable under section 110. From 30 October 2026 the employer's duty to prevent sexual harassment rises from "reasonable steps" to "all reasonable steps", and employers become liable for harassment of their employees by third parties such as customers where they have not taken all reasonable steps to prevent it. The Act also gives ministers power to specify steps that count as reasonable for preventing sexual harassment; as at 4 September 2026 those regulations are not in force.
Part 6: Is Each Allegation in Time?
Time is decided allegation by allegation. Under section 123 a claim must be presented within 3 months less 1 day of the act; for acts on or after 1 October 2026 that becomes 6 months less 1 day. Acas early conciliation extends the period, and the calculation is not simply the act date plus three or six months.
Conduct extending over a period is treated as done at the end of the period. Several incidents are not one continuing act merely because they are connected; the tribunal asks whether they amount to an ongoing discriminatory state of affairs rather than separate completed acts, and that is a fact-sensitive question not suited to summary decision (Waithaka v Barclays Execution Services [2026] EAT 105). Where an allegation is out of time, the tribunal can extend the limit if it considers that just and equitable. That is a broad discretion with no requirement for exceptional circumstances, but it is not automatic and the claimant has to persuade the tribunal to exercise it. Our guide on missing the tribunal deadline covers that argument.
Part 7: What Remedy Follows?
Under section 124 a tribunal that finds discrimination can make a declaration, order compensation, and make a recommendation that the employer take specified steps. Compensation is assessed on the allegations upheld: financial loss (past and future, subject to mitigation) and injury to feelings, with no statutory cap. Injury to feelings is assessed in the Vento bands, which for claims presented on or after 6 April 2026 are £1,300 to £12,600 for less serious cases, £12,600 to £37,700 for the middle band, and £37,700 to £62,900 for the most serious, with exceptional cases able to exceed that. Interest is added, and an unreasonable failure to follow an applicable Acas Code can adjust the award by up to 25%.
A claimant can succeed on some allegations and fail on others. A judgment upholding some and dismissing the rest has found unlawful treatment, and remedy follows for what succeeded. Costs do not follow the event in the tribunal, so losing some allegations does not by itself expose you to the employer's costs; our guide to what "vexatious" means at tribunal covers when costs can arise.
What Reaches Published Decisions
Yerty data. In the public register of Employment Tribunal decisions, 21,967 cases are tagged with the disability discrimination jurisdiction code, 11,759 with race, 10,906 with sex and 3,749 with pregnancy and maternity. These count cases that produced at least one published decision carrying the code; they are not success rates, and a case tagged with two characteristics is counted under each. A published decision can be a withdrawal, a procedural judgment, a liability decision or a remedy decision, and many claims that settle, conciliate or withdraw produce only a procedural judgment or no merits decision, so the register is not representative of all claims brought. The data-led guides for disability, race, sex and pregnancy and maternity cover outcomes.
Method: cases in Yerty's set of published decisions tagged with the relevant tribunal jurisdiction code; unit is the case, deduplicated across documents; figures as at 2 September 2026.
Where and When Are These Parts Decided?
| Part | Where it may be dealt with | Key point |
|---|---|---|
| Protected basis | Usually undisputed; disability status may be a preliminary issue | See the disability guide |
| Type of discrimination | The claim form, then case management and the list of issues | The claim form sets the scope; the list identifies what will be decided |
| Allegations | The final hearing, act by act | Each decided on its own |
| Legal link and proof | Usually the final hearing, on the evidence | Two-stage legal test where the reason is disputed, not a two-stage hearing |
| Employer's answer | Usually the final hearing | Depends on the type of claim |
| Time | Preliminary hearing where listed, otherwise the final hearing | Decided per allegation |
| Remedy | The same hearing or a separate remedy hearing | Only where liability succeeds |
A preliminary hearing that only deals with case management is ordinarily private; the part of a preliminary hearing that determines a substantive preliminary issue, such as time or disability status, is ordinarily public, subject to any privacy order. Which questions are taken when is case management; read the notice of hearing for what it is listed to decide.
What This Means for You
The parts above can help make sense of a list of issues and of why a judgment reads as it does. For each allegation, the questions are: what happened and when; which type of discrimination it is pleaded as; what the legal link for that type is and what, beyond unfair treatment, supports it; what the employer is likely to say in answer for that type; and whether it is in time. Where the answer to any of those is unclear, that is where the evidence for that allegation needs attention. Our ET1 guide covers starting the claim; for complex cases, you may still want to speak with a solicitor.
Frequently Asked Questions
Does the burden of proof shift to my employer in a discrimination claim?
It can, at stage two of the section 136 test. If, on all the evidence, there are facts from which the tribunal could conclude that discrimination occurred, the employer must show it did not. A difference in treatment and a difference in characteristic are not enough on their own.
Do I need a comparator?
An actual or hypothetical comparison is part of direct discrimination under section 13, but you do not need to find a real colleague who matches; the comparator can be hypothetical. Section 18 pregnancy and maternity discrimination needs no comparator, and nor do discrimination arising from disability, reasonable adjustments, harassment or victimisation. Indirect discrimination compares groups, not individuals.
Why has my claim been split into numbered allegations?
Because the tribunal decides each act separately: whether it happened, which type of discrimination it is, whether the legal test is met, whether the employer has an answer, and whether it is in time. That is the approach the EAT required in Clifton Diocese v Parker [2026] EAT 68.
Can I win some allegations and lose others?
Yes. Each is decided on its own, and remedy follows for the allegations upheld.
What is the time limit for a discrimination claim?
3 months less 1 day from the act, or 6 months less 1 day for acts on or after 1 October 2026, extended by Acas early conciliation. Conduct extending over a period runs from its end, and the tribunal can extend time where just and equitable.
What can the tribunal award?
A declaration, compensation for financial loss and injury to feelings (in the Vento bands, currently £1,300 to £62,900 with exceptional cases above), interest, and a recommendation. There is no cap on discrimination compensation.
What changes on 30 October 2026?
The employer's duty to prevent sexual harassment rises to taking all reasonable steps, and employers become liable for harassment of employees by third parties where they have not taken all reasonable steps to prevent it.
Sources
- Equality Act 2010, sections 4, 13, 15, 18, 19, 19A, 20, 21, 23, 26, 27, 109, 110, 123, 124, 136: https://www.legislation.gov.uk/ukpga/2010/15
- Equality and Human Rights Commission, Employment Statutory Code of Practice (2011): https://www.equalityhumanrights.com/guidance/employment-statutory-code-practice
- Clifton Diocese v Parker [2026] EAT 68, 12 May 2026: https://www.gov.uk/employment-appeal-tribunal-decisions/clifton-diocese-v-miss-janet-parker-2026-eat-68; commentary: Solicitors Journal: https://www.solicitorsjournal.com/sjarticle/clifton-diocese-v-parker-eat-clarifies-burden-of-proof-in-religion-or-belief-discrimination-claims; DAC Beachcroft: https://www.dacbeachcroft.com/en/What-we-think/EAT-gives-guidance-on-burden-of-proof-in-discrimination-claims
- Royal Mail Group Ltd v Efobi [2021] UKSC 33; commentary: Farrar's Building: https://www.farrarsbuilding.co.uk/did-the-equality-act-2010-make-a-substantive-change-to-the-burden-of-proof-in-discrimination-claims-no-says-supreme-court/
- Madarassy v Nomura International plc [2007] EWCA Civ 33; commentary: Stammeringlaw: https://www.stammeringlaw.org.uk/disability-equality-law/discrimination/proving-discrimination/
- Laffy v WKCIC Group [2026] EAT 90, 19 June 2026: https://www.gov.uk/employment-appeal-tribunal-decisions/mr-g-laffy-v-1-wkcic-group-t-slash-a-capital-city-college-group-2-ms-odu-2026-eat-90; Waithaka v Barclays Execution Services Ltd [2026] EAT 105, 17 July 2026: https://www.gov.uk/employment-appeal-tribunal-decisions/mr-washington-waithaka-v-barclays-execution-services-ltd-2026-eat-105
- Khakimov v Amova Asset Management UK Ltd [2026] EAT 47; commentary: Solicitors Journal: https://www.solicitorsjournal.com/sjarticle/khakimov-v-amova-asset-management-eat-clarifies-section-15-causation-and-the-limits-of-list-of-issues-re-formulation
- Presidential Guidance, Ninth Addendum (Vento bands), 30 March 2026: https://www.judiciary.uk/wp-content/uploads/2026/03/Vento-bands-presidential-guidance-April-2026-addendum-1.pdf
- "Workplace sexual harassment and third-party harassment", business.gov.uk: https://www.business.gov.uk/campaign/employment-changes/employers/workplace-sexual-harassment-and-third-party-harassment/
- Employment Tribunal Procedure Rules 2024 (SI 2024/1155), as amended by SI 2026/115: https://www.legislation.gov.uk/uksi/2024/1155
- Yerty analysis of published Employment Tribunal decisions (pleaded claims by protected characteristic); method above and at the linked data guides