Proving direct discrimination — the burden of proof


The law recognises that it is generally very difficult for a claimant 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). These rules are based on EU law — the Burden of Proof Directive (Council Directive 97/80/EC).


Section 136, EA 10 (Burden of Proof) says, in summary, that if there are facts from which a tribunal could decide, in the absence of any other explanation, that a person 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 must 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, Igen Limited v Wong [2005] ICR 931). 


First, the claimant must prove facts (that is, evidence of less favourable treatment) from which the tribunal could conclude, in the absence of any other explanation, that discrimination has occurred. Having done this, the “burden” shifts to the employer to provide an adequate explanation for the less favourable treatment that has nothing whatsoever to do with the protected characteristic. 


If the employer fails to provide an adequate non-discriminatory explanation, the tribunal must make a finding of discrimination. 


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 and it applies to all cases of direct discrimination. 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 assessment (Madarassy v Nomura International PLC [2007] EWCA Civ 33). 


More than a mere difference in treatment is needed to shift the burden of proof. 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. Something extra 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. This would normally be enough to shift the burden of proof to the employer to provide an explanation. The employer would then need to produce evidence explaining the difference in 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).