Proving discrimination in the employment tribunal
This advice applies to England, Wales and Scotland
To decide whether discrimination has occurred the tribunal will have to decide:
- What happened and
- Whether what happened amounted to discrimination under the Equality Act 2010
To decide, they’ll consider:
- Which party (you or the employer) is expected to prove each particular issue (the ‘burden of proof’) and
- Whether the party who has the burden of proving an issue has done so to the required standard of proof
For example in a disability discrimination claim the claimant has the burden of proving that they are a disabled person. They have to produce enough evidence to persuade a tribunal that it’s ‘more likely than not’ (at least 51% likely) that their impairment has a substantial adverse effect on their day to day activities. This is the ‘standard of proof’ in the employment tribunal.
Shifting the burden of proof
The ‘burden of proof’ refers to which party has to prove which issues.
There is an important provision to help claimants, which reflects the fact that claimants rarely have the information necessary to prove discrimination, since it’s known only to the employer. To make it possible to prove discrimination section 136 of the Equality Act 2010 says that:
- Where the claimant has proved facts from which the tribunal could, in the absence of an adequate explanation, decide that the respondent has committed an act of discrimination
- The complaint must be upheld unless the respondent proves that it did not commit such an act
This means that once you have done enough to satisfy the tribunal that your employer might have discriminated your employer will have to prove that they didn’t discriminate.
The shifting burden is particularly important in direct discrimination cases. The tribunal will consider your argument first, to see if they could conclude that it was discrimination, if there was no other explanation. If they think it could have been discrimination, they will say you have made a ‘prima facie’ case. This means that you have successfully satisfied your burden of proof for direct discrimination claims. If you do that, then the tribunal will then consider the employer’s alternative explanation — and consider whether the employer has proved that the reason for the different treatment was not a protected characteristic, but some other reason. The tribunal hears all of the evidence together, but when considering whether the discrimination is proved it’s important that they look at that evidence in this two-stage way. It means that you don’t have to prove there was discrimination, only that there might have been. If you can do this your employer has to prove there was no discrimination.
Drawing an inference of discrimination
The tribunal can look at evidence which doesn’t directly prove you were discriminated against to see if they can ‘draw an inference’ of discrimination from that evidence. For example they could consider:
- evidence which shows that your employer was discriminatory to other employees in similar situations or they were discriminatory to you on other occasions
- that your employer behaved in an inconsistent way or they over-reacted and there is insufficient non discriminatory explanation for their behaviour
- that your employer has not been transparent or open about their actions or decisions or that they’ve given different explanations at different times and there is insufficient non discriminatory explanation for their behaviour
- any discriminatory language or discriminatory explanations
- whether your employer had followed the guidance in the EHRC Code of Practice on Employment, or its own policies
- the way that your employer has responded to your grievance or any questions you have asked about what has happened, or documents you requested. If your employer’s response was evasive, or if they didn’t reply at all, the tribunal could draw an inference of discrimination
- Statistics about the employer’s workforce that show similar trends in inequality between people with protected characteristics — these might be publicly available.
Case study example showing how to prove direct discrimination
Yasin has worked in a print factory for 4 years. In that time he has seen employees who started work after him being given more training than him and promoted up through the company. He thinks that this is because he is a Muslim, as they all seem to be non-Muslims.
He brings a claim, and gives evidence about the lack of training, the fact that he has not been promoted, and the fact that he is a Muslim.
The employer’s managing director gives evidence. He says that the company doesn’t keep records of the religious beliefs of its employees. He says that Yasin has received the same training as everyone else, but did not do very well in it, and underperformed generally.
Yasin has not provided enough evidence for the tribunal to decide that he has been treated less favourably than anyone else. He loses his claim.
What evidence should Yasin have provided?
In preparing for his case, Yasin should have thought about his comparator, a non-Muslim person who started employment at the same time as him, with the same skills and experience as him prior to starting, and with the same scores in annual appraisals.
If there isn’t an employee in the company who fits this exact description, he’ll have to ask the tribunal to consider how a hypothetical person who fits this description would have been treated, and he needs evidence to allow the tribunal to carry out this exercise.
He could have gathered this evidence before starting action, for example using the Questions procedure [Gathering Evidence] or after starting a claim he could ask the tribunal to order the employer to provide this information.
Case study example showing how to prove indirect discrimination
Maire works as a quality controller in a factory that makes wallpapers. The factory has two shifts from 7am to 4pm and 3pm to midnight but decides to add another shift between 11pm and 8am. All staff are now expected to work some night shifts on a rotating basis. Maire and her partner have a child but have not been able, up until now, to organise childcare around Maire’s shifts. She asks not to work any night shifts and her employer refuses, saying that it wouldn’t be fair on the other employees. After no agreement is reached, Maire resigns from her job. Maire brings a claim of indirect sex discrimination.
It isn’t in dispute that the employer is applying a rule that all employees must work some night shifts. It is clear from Maire’s own evidence that she was placed at a disadvantage by this rule; she had to resign because she could not comply with it.
At tribunal, things seem to be going well and the tribunal seems sympathetic when they hear that she had to resign because of the shift change. But when the employer’s solicitors make their closing statement, they point out to the tribunal that Maire has provided no evidence to show that their new shift pattern places, or would place, women generally at that same disadvantage.
What evidence could Maire have provided?
It is possible to ask the tribunal to rely on their Judicial knowledge that women still have greater responsibility for childcare in society but this concept cannot always be relied on and it is now increasingly required that additional evidence of disadvantage is supplied. The rule being applied was a requirement to work night shifts. Maire could have produced evidence from which the tribunal could have satisfied itself that the rule disadvantaged women in comparison with men.
There are 2 ways of doing this. One is by requesting information from the employer about the rule, policy or practice and its effect on men, and women, in the employer’s workforce. The second is to obtain statistical evidence showing national trends about the ways in which men and women work, and the relationship between childcare responsibilities and patterns of working.
If Maire can’t get useful workplace statistics she could use statistics about the national workforce. Information can be found on the Office for National Statistics website.
If your employer is a public body such as Council then they should have published equality information under their obligations under the Public Sector Equality duty. Further guidance on the Public Sector Equality Duty.
In Scotland, some employers might already publish statistics about their workforce under the Public Sector Equality duty . For example, public sector employers in Scotland, like councils, have specific duties under the Equality Act to monitor and publish some equality information about their own staff.