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Proving discrimination

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This page does not apply outside Great Britain.
Last updated 28th July 2021.

This page deals with limited aspects of the evidence required to show there has been discrimination and that one has a disability.

Summary

  • In general the burden of proof is on the claimant. This means the claimant must show that the facts required for the claim to succeed are more likely than not to be true. That is not necessarily difficult, it could turn for example on which witness’s evidence the tribunal believes. Below Burden of proof.
  • If the claimant makes out a prima facie case, the burden of proof shifts to the employer to show it did not discriminate. Below Shift of burden of proof.
  • Claimants can ask questions of the employer or service provider before bringing a claim, either under a statutory right such as the GDPR, or otherwise. However the former “questions procedure” was abolished in 2014. More Asking questions.
  • Once proceedings have started, there are further rights to see documents, including internal emails: Seeing relevant documents.
  • It is for the claimant to show he or she has a disability. The burden of proof does not shift. See separate page Proving disability: impact statements and expert reports.

Introduction, and further resources

I am not going to try and tell anyone how to run a tribunal or court case or how to prove a case (I have no experience of it), though I can make a few points on this page. See Sources of help and advice, and links from the following more specific pages:

Burden of proof

Balance of probabilities

Subject to the shift in burden of proof (below), it is for the claimant to prove the facts on which s/he relies, in particular to prove that s/he has a disability (if that is disputed) and that there has been unlawful discrimination.

Proof just needs to be on a “balance of probablities”. In other words, the tribunal will decide whether it is more likely than not that the claimant’s version of the facts is true.

So evidence does not have to be conclusive. Often there will not be direct evidence as to whether an employer discriminated. The tribunal may make inferences from the facts that are proved or not disputed. Cases may turn on which party’s evidence the tribunal believes. The employer’s internal emails and documents (below) may also be useful evidence.

As regards the objective justification defence, the burden is on the employer or service provider etc to show the defence applies.

Shift in burden of proof

There is a rule that the burden of proof shifts to the employer or service provider etc if – very broadly speaking – the claimant makes out a prima facie case. This rule is in EqA s.136. There are numerous cases on it which I do not go into here. It is not an easy area. There is a 2012 outline and critique by Darren Newman in Guilty until proven innnocent? (rangeofreasonableresponses.com).

It is often said (based on the Madarassy case below) that simply showing there has been a difference in treatment between eg a disabled and non-disabled person is not enough to shift the burden of proof – that ‘something more’ is needed.

The landmark Court of Appeal decision of Igen v Wong in February 2005 gave guidance on what s.136 means. The Court of Appeal gave further guidance in Madarassy v Nomura Ltd (bailii.org), 2007. There are also later cases, but – as I say – I am not going to discuss the detail.

“…it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other.”
Hewage v Grampian Health Board (bailii.org), Supreme Court, 2012

Unlike previous statutory wording such as the Disability Discrimination Act, s.136 Equality Act 2010 does not expressly say the claimant needs to prove anything. It just says that the burden of proof shifts to the employer or other respondent “[i]f there are facts from which the court could decide, in the absence of any other explanation” that there was a breach of the Equality Act. However the Supreme Court in Efobi v Royal Mail Group (bailii.org), 2021 has confirmed that this change in wording does not change the law:

  • Under s.136 there is still an initial burden of proof on the claimant, since on basic rules of evidence an employment tribunal may only find that “there are facts” if the tribunal concludes that they are more likely than not to be true.
  • However wording of s.136 reflects the fact that – as courts had already held under pre-Equality Act legislation – the court must take into account all evidence including from the employer etc, in deciding whether the burden of proof has shifted. That includes any facts alleged and proved by the employer.
  • But in deciding whether the burden of proof has shifted, the court must ignore any explanation given by the employer of the facts from which the court could infer there was a breach of the EqA, and assume that there is no adequate explanation for them.
  • The employer’s explanation of those facts is of course important at the second stage once the burden of proof has shifted, when the employer is seeking to prove there was no breach of the Act.

The shift in burden of proof does not apply to showing the claimant has a ‘disability’. The burden remains on the claimant to show this, on a balance of probabilities. See separate page Proving disability: impact statements and expert reports.

On burden of proof and the duty to make reasonable adjustments, see Reasonable adjustment rules: employment>Burden of proof.

Prohibited enquiries on health or disability

Where there is a claim that an employer is liable for direct discrimination, the legislation specifically says that the burden of proof shifts under s.136 if the employer has asked a job applicant about health or disability in breach of s.60 EqA. Here, the claimant need not show a prima facie case. The burden of proof shifts if an individual claims that conduct by the employer (eg turning him down for a job) in reliance on information given in response to a prohibited enquiry is direct discrimination. See Pre-employment enquiries – that page includes an example of the shift in burden of proof, under the heading ‘Enforcement’.

Reasonable adjustment claims may be easier

Whilst the rules on burden of proof apply generally, they are most likely to be important where the issue is why a person was treated less favourably – was it because of something to do with their disability that they were turned down for a job or promotion, for example.

However, showing the reason why one was turned down is not a precondition to a claim for reasonable adjustments. It may be easier for a claimant to show that an employer’s practice etc put him or her at a substantial disadvantage, and that there was a breach of the reasonable adjustment duty.

Asking questions

Asking questions can be very useful to help a claimant decide whether it is worth bringing a case in the first place, and if so how to formulate and present a case most effectively. As well as helping formulate a case if brought, it can help avoid unnecessary litigation. A claimant may find from the responses given that their case is weak, so no claim is made or the claim is withdrawn. Alternatively, the process of answering the questions may bring home to an employer etc that there is a serious case against them, and encourage them to negotiate a resolution, again avoiding litigation.

For discrimination which happened before 6th April 2014 there was a formal “questions procedure” which a potential claimant could use even before proceedings were started. However this was repealed by the Coalition government. The procedure involved sending a form to the employer or service provider asking relevant questions. If the employer etc unreasonably failed to reply within 8 weeks or its reply was evasive or equivocal, the tribunal or court could draw inferences from that.

Though that questions procedure is now repealed, claimants can still make a subject access request under the GDPR (below), or ask questions without relying on a legal right to do so:

Subject access request under GDPR

Claimants can use their statutory rights to make a ‘Subject access request’ (ico.org.uk) for personal information under the General Data Protection Regulation (GDPR), which became part of UK law after Brexit. Also for non-personal information held by a public body, it may be possible to make an FOI request (ico.uk) under the Freedom of Information Act.

In the context of claims against service providers, Doug Paulley’s ‘DART’ (Disability Attitude Re-adjustment Tool) suggests in Part 9 putting in a Subject access request at the same time as a Letter before action.

Asking questions without a legal right

Even after the abolition of the questions procedure, claimants can write to the employer (or service provider etc) asking questions, and a tribunal or court may well be willing to draw inferences from failure to respond. The government has issued new guidance on asking questions of service providers:

34. “In the absence of section 138 [ie the statutory questions procedure], a complainant may still raise questions of the respondent. A court or tribunal could still conclude adverse inferences from a refusal to respond or from evasive answers, despite the lack of any provision for a statutory questionnaire.”
Enterprise and Regulatory Reform Bill: Supplementary notes explaining new clauses (Word doc, archived discuss.bis.gov.uk). Linked from archived discuss.bis.gov.uk/enterprise-bill/latest-updates/, 9th October 2012.

“We will replace the statutory provisions, including the forms for questions and answers and the eight week time limit for businesses to respond, with an informal approach. This new approach will be set out in guidance produced by Acas and will include advice on how individuals can ask questions and why employers and service providers should respond. This will enable business to better challenge any unreasonable requests for information which they have told us they currently experience with the statutory provisions. A non-legislative approach will be simpler and fairer for all.”
Employment Law 2013: Progress on reform (gov.uk), March 2013. I’m not sure if there is still any ACAS guidance (2021).

Seeing relevant documents – after proceedings have started

Once proceedings are instituted, a tribunal or court will commonly order disclosure to the other side of relevant documents (unless privileged) – eg notes of interviews, an employer’s internal and external emails, even WhatsApp messages (laytons.com).

Proving disability

It is for the claimant to show on a balance of probabilities that the stammer meets the legal test of being a ‘disability’, if the employer does not accept this. See separate page Proving disability: impact statements and expert reports.

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