Is it easy to bring a racial discrimination case?

No. Proving that racial discrimination has occurred is not easy. This is because: 

  • the person claiming discrimination has to prove it 'on the balance of probabilities', although there are differences depending on what racial grounds are cited:
  • grounds of race of ethnic or national origins: if the person must establish the facts from which an employment tribunal can conclude that an act of racial discrimination or harassment on grounds of race or ethnic or national origins has occurred, the employer will have to prove that any difference in treatment was not due in any way to discrimination or harassment. If the explanation is inadequate or unsatisfactory, the tribunal must first find that unlawful discrimination has occurred;
  • grounds of colour or nationality: where the discrimination is on grounds of colour or nationality, if the person establishes facts from which an employment tribunal could conclude that he or she has suffered racial discrimination, the tribunal will ask the employer for an explanation. If the explanation is unsatisfactory, the tribunal may find that unlawful discrimination has occurred.
  • evidence of discrimination is difficult to find, and witnesses are often reluctant to come forward
  • the law on racial discrimination is complex and you will probably need some specialist advice and assistance in preparing and presenting your case
  • in some non-employment cases it can take up to two years before the case is heard
  • public funding (formerly known as legal aid) is only available for representation in county court or sheriff court cases, not for hearings at employment tribunals. If you have a low income, you may be able to obtain advice at the early stages of your case (but not representation at the tribunal hearing) from a solicitor. Public funding is available for all the appeal stages of a case.

Pursuing a case can be very stressful and time-consuming. It is not a decision that should be taken lightly. If your complaint is about an employment matter, you must now use your employer's internal grievance procedures before commencing a claim. We also recommend that you use your trade union's services (if you are a member of one).

Litigation should be a last resort. However, given the strict time limits for making complaints in the courts or tribunals, if you are thinking about commencing a claim, it is important to seek advice about your complaint as soon as possible.

Last Updated: 01 Jul 2009