Building a discrimination case with evidence and the burden of proof

Key rules

• Burden of proof: In civil, labour and administrative cases, once you show well-founded indications, the other side must justify its action; this does not apply in criminal cases.
• Your own recordings: A recording of a conversation you took part in is generally usable; recording others' conversations is not.
• Varied evidence: Combine documents, messages, witnesses and comparison evidence, because mixed evidence is stronger than any single item.
• Unlawful evidence: Evidence obtained by violating fundamental rights is inadmissible.

You do not have to prove the whole case

In civil, labour and administrative cases, you only need to show well-founded indications of discrimination. Once you do, the other side must justify what it did. This does not apply in criminal cases, where the presumption of innocence applies and the usual criminal standard of proof stays in place.

The other side's justification must be objective and reasonable, and the measure must be proportionate. You still have to show the basic facts. A feeling of being treated unfairly is not enough.

What counts as an indication

You need facts from which discrimination can reasonably be presumed. Good examples are:

• Someone in a similar position being treated better than you.
• Things the other side said or wrote.
• Statistics showing a pattern.
• Accounts from people who saw or heard what happened.

Recording your own conversations

You can generally use a recording of a conversation you took part in. Spanish courts do not treat this as a breach of the secrecy of communications, because that right protects you from outsiders.

Watch for these limits:

• Never record conversations between other people when you are not part of them. That is unlawful, and the recording cannot be used.
• A judge may reject or give little weight to a recording of something private, or one obtained by deception or unnecessary intrusion.
• The other side can challenge whether the recording is genuine and complete. Keep the original file and make a written transcript.
• Do not post the recording publicly. That can create separate liability for you.

The judge decides in each case whether to admit a recording and how much weight it carries.

Use varied evidence

Several kinds of evidence together are stronger than one. Courts accept documents, messages, screenshots, social-media posts, recordings, witness statements and expert reports. Comparison evidence, which shows how others in a similar position were treated, carries real weight. So does a report from the Inspección de Trabajo, the labour inspectorate, in work cases.

Evidence obtained by violating someone's fundamental rights is inadmissible. Gather only what you can obtain lawfully.

The documents list and the evidence checklist below show what to collect and how to keep it. Start the day it happens, because details fade and messages get deleted.

Documents you need

• Written documents from the other side: contracts, emails, advertisements and refusal letters.

• Electronic records of messages: screenshots, chat messages and social-media posts, kept in their original form.

• Audio, video or image recordings, only of conversations you took part in, with a written transcript.

• Witness statements from people who saw or heard what happened.

• Expert reports or an inspection report from the Inspección de Trabajo, the labour inspectorate, where they exist.

• Comparison evidence and statistics showing how people in a similar position were treated.

Evidence checklist after a discriminatory incident

Evidence to gather after a discriminatory incident

• Write down the date, time and place of the incident, and what was said or done, as soon as it happens.

• Save emails, chats, messages, advertisements and refusal letters in their original form, without editing them, and keep copies on a separate device or drive.

• Take screenshots of messages and social-media posts that show the sender, the date and the web address.

• Record the conversation only if you are taking part in it, and keep the original audio file with a written transcript.

• Ask a notary for an acta de presencia or acta de contenido, a notarised record of a web page or messages, if the proof is important and could disappear.

• Create a hash (a digital fingerprint such as SHA-256) of your key files, so you can show later that they have not been changed.

• Note each witness's full name, ID number, contact details and what they saw, and ask them for a signed written statement.

• Collect comparison evidence: how people in a similar position were treated, such as other applicants, tenants or colleagues.

• Ask the venue or employer in writing to keep any CCTV footage right away, since it is often deleted within about a month.

• Report the incident promptly to the police, the labour inspectorate or a consumer body, so the facts are officially recorded.

Frequently asked questions

Can I use a recording of my own conversation as evidence in Spain?

Yes, generally, a recording of a conversation you take part in can be used as evidence in Spain.

Can a recording still be rejected as evidence?

Yes, a judge can give a recording little weight if it was obtained by deception or by unnecessary intrusion into private matters. Sharing it publicly can also create separate liability for you. Use it in your case, not on social media.

Do I have to prove the whole discrimination case myself?

No, you only need to show facts from which discrimination can reasonably be presumed, such as how others were treated, statements, statistics or witness accounts. You still have to show those basic facts. In criminal cases this shift does not apply.

Is evidence from the labour inspectorate useful in a discrimination case?

Yes, inspection reports from the Inspección de Trabajo, the labour inspectorate, carry weight, especially in work-related cases. Comparison evidence, statistics and situation testing also help. Evidence obtained by violating fundamental rights is not accepted.