Proving discrimination — the burden of proof


The law recognises that it is generally very difficult to prove that discrimination has taken place. Decision-makers rarely admit to discrimination, and sometimes may not even be aware of it. To make the position of claimants slightly easier, there are special rules about the burden of proving discrimination (section 136, EA 10). They apply to all forms of discrimination under the EA 10.


Section 136, EA 10 says that if there are facts from which a tribunal could decide, in the absence of any other explanation, that someone has committed an act of discrimination, the tribunal must conclude that discrimination has taken place unless that person proves that discriminatory motives played no part whatsoever in their actions.



Tribunals approach the burden of proof under section 136, EA 10 by applying a “two-stage” test (Ayodele v (1) Citylink (2) Napier [2017] EWCA Civ 1913). First, the claimant must prove facts (that is, evidence of negative treatment) from which a tribunal could conclude, in the absence of any other explanation, that discrimination has occurred (in other words, that the negative treatment was due, at least in part, to a protected characteristic). Having done this, the “burden” then shifts to the employer to provide an adequate explanation that has nothing whatsoever to do with the protected characteristic. If the employer cannot do this, the tribunal must rule that discrimination has taken place. 


The employer’s explanation does not have to be reasonable or sensible, but it must have nothing whatsoever to do with the protected characteristic. In practice, the less sensible, clear or consistent the explanation, the less likely the tribunal is to believe it.


This is the process known as “shifting” the burden of proof. In practice, the tribunal does not hear the evidence and argument in two stages. Instead, it listens to all the evidence before carrying out its own “two-stage” analysis. 



Something more than a mere difference in treatment is needed to shift the burden of proof (Madarassy v Nomura International PLC [2007] EWCA Civ 33). For example, in a claim alleging race discrimination in recruitment, it is not enough simply to show that of two candidates, one black and one white, the white candidate got the job (even if this happens to the same individual multiple times, as in the case of Royal Mail v Efobi [2019] EWCA Civ 18). Instead, something extra, linked to the protected characteristic, is needed to raise an “inference” of discrimination. This might be clear evidence that the black candidate was much better qualified than the white candidate. The burden then shifts to the employer to provide an explanation of the different treatment that in no way relates to race, for example, evidence that the white candidate scored better at interview (Brunel University v Killen [2014] UKEAT/0403/13/1403).


The kind of evidence that shifts the burden of proof depends on the circumstances of each case. 


Evidence that is unrelated to the protected characteristic, for example, incompetent procedures or cronyism, will not usually shift the burden of proof on its own (see for example, Dunn v The Secretary of State for Justice & Anor [2018] EWCA Civ 1998).