Burden of Proof in Discrimination Claims

The number of discrimination claims is on the increase. Apart from new age discrimination rights, the reasons for the upward trend in claims are numerous but greater awareness of rights and the publicity given to extremely high value claims, some running into millions of pounds, are probably two of them.

In this article I want to talk about the burden of proof in discrimination claims. Sounds boring, but give me a minute of your time.

In criminal law the burden of proof is simple. For a drunk driver pleading not guilty the Crown has to prove, beyond all reasonable doubt, that he or she is guilty for there to be a conviction. The prosecution have the burden of proving guilt.

In discrimination claims there is a different burden of proof that potential claimants and employers should understand.

If I think I have been made redundant because I have hit 50, I have a potential claim of age discrimination.

I make a claim and set out the facts. These are that there were four people in the department I worked in, three were in their 20s and me, 50. Without any explanation I was told that I was redundant. I couldn’t understand it because we all did the same job and I had the longer service.

These facts don’t prove age discrimination but without an explanation from my former employer it looks like it could be age discrimination.

So what the law says is that because it looks like discrimination, my former employer now has to prove that the reason I was made redundant had nothing to do with my age, if it is to defend any claim.

Effectively, if a claim looks like discrimination the employer has to prove that it was not by showing non-discriminatory reasons for its actions.

This reversal of the burden of proof is fair because Claimants do not always have access to all the facts and information to enable them to bring claims, whereas employers who keep proper records should be able to explain their actions.

So the lesson for potential claimants: if it looks like discrimination, remember you don’t have to prove it.

For employers, the lessons are don’t treat your staff like mushrooms; explain your actions when necessary and keep proper records.

Published 27/11/2007. The author of this article is Jon Loney