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 help make the position of claimants slightly easier, there are special rules about the burden of proving discrimination. In essence, these rules say that as long as a claimant can establish facts from which a tribunal could conclude, without any other explanation, that discrimination has happened, the burden then shifts to the employer to prove that its treatment of the employee was in no sense whatsoever because of a protected characteristic (Igen Limited v Wong [2005] ICR 931, section 136 EA 10). 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 to show that the black candidate was much better qualified than the white candidate. Having established facts from which discrimination could be inferred, the onus then shifts to the employer to prove that their decision to recruit the white candidate was wholly unrelated to race. This could be, for example, because the white candidate performed much better at interview (Brunel University v Killen [2014] UKEAT/0403/13/1403).



The fact that an employer has been inconsistent or untruthful about their reasons can sometimes help shift the burden of proof. However, unreasonable behaviour on its own is not normally enough. Neither is the incompetent handling of a grievance, or a lackadaisical attitude on the part of the investigator (Chief Constable of Kent Constabulary v Bowler [2017] UKEAT/0214/16/RN).