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Proving discrimination

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This page does not apply outside Great Britain.
Last updated 10th August 2021 (part update 17th March, 2026).

This page deals with limited aspects of the evidence required to show there has been discrimination within the Equality Act 2010 (EqA).

Summary

  • In general the burden of proof is on the claimant. This means that the claimant must show that the facts required for the claim to succeed are more likely than not to be true. This 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, then under s.136 EqA the burden of proof shifts to the employer or service provider etc to show it did not discriminate. Below Shift in 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. More Asking questions, before proceedings.
  • Once proceedings have started, there are further rights. These include particularly a right to see relevant documents, including internal emails: Disclosure of documents.
  • It is for the claimant to show that they have a disability. For this 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 the claimant relies, in particular to prove that they have a disability (if that is disputed) and that there has been unlawful discrimination.

Proof just needs to be on a ‘balance of probabilities’. 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.

Evidence is not limited to documents. What the claimant and other witnesses tell the tribunal or court in their witness statements, or orally on oath, is also 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 – broadly speaking – the claimant makes out a prima facie case. This is by virtue of EqA s.136. There are numerous cases on it which I do not go into here. It is not an easy area.

A worker of Jain faith applies for promotion but is unsuccessful. Her colleague who is a Mormon successfully gets the promotion. The unsuccessful candidate obtains information using the questions procedure in the [Equality] Act which shows that she was better qualified for the promotion than her Mormon colleague. The employer will have to explain to the tribunal why the Jain worker was not promoted and that religion or belief did not form any part of the decision.

Employment Code of Practice, para 15.32. The statutory questions procedure has since been repealed. However a claimant might find information about who was appointed through, say, disclosure of documents (below), or LinkedIn.

S.136 is especially important in a direct discrimination claim (such as that example), where it can be difficult to show that less favourable treatment was because of a disability etc. For direct discrimination, it is generally considered (based on the Madarassy case below) that it is not enough simply to show that there has been a difference in treatment between eg a disabled and non-disabled person. To shift the burden of proof, ‘something more’ is needed. Examples of what ‘more’ may potentially be enough:

  • if the claimant’s job application was unsuccessful, and there is evidence showing that the claimant was better qualified, or at least as well qualified, as the person who did get the job (Network Rail Infrastructure v Griffiths-Henry (bailii.org), EAT, 2006 at §15 and §17; para 15.32 below of the Employment Code‘ below’; also, though not an appeal decision, this taken into account as regards the race discrimination claim in M v Jacksons Dairy, 2026), or
  • if there is evidence that the employer gave false or inconsistent reasons for the less favourable treatment (Base Childrenswear v Otshudi (bailii.org) [2019] EWCA Civ 1648; and again M v Jacksons Dairy, 2026, is an example), or
  • negative comments relating to the stammer or speech, or other disability (cf James v Gina Shoes (bailii.org), EAT, 2012, an age discrimination case, where the employer asked rhetorically whether it was the claimant’s age that caused him not to be able to work to their expectations, and said that if he were younger it might be possible to train him).

The shift in burden of proof does not apply to showing that 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.

As to how s.136 applies to the duty to make reasonable adjustments, see Reasonable adjustment rules: employment>Burden of proof.

More on s.136

There is a 2012 outline and critique by Darren Newman in Guilty until proven innnocent? (rangeofreasonableresponses.com).

The landmark Court of Appeal decision of Igen v Wong in February 2005 gave guidance on what s.136 EqA 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, s.136 EqA does not expressly say that 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 EqA. However the Supreme Court in Efobi v Royal Mail Group (bailii.org), 2021 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 (or county court etc) may only find that ‘there are facts’ if the tribunal concludes from the evidence that they are more likely than not to be true.
  • However, the wording of s.136 reflects the fact that – as courts had already held under pre-EqA legislation – the tribunal must take into account all evidence including from the employer or service provider etc, in deciding whether ‘there are facts’ such that the burden of proof has shifted. That includes any facts alleged and proved by the employer etc.
  • However at the first stage, ie in deciding whether the burden of proof has shifted, the court must ignore any explanation which the employer etc gives of the facts, and assume that there is no adequate explanation for them.
  • The explanation by the employer etc of those facts is of course important at the second stage (once the burden of proof has shifted), when the employer etc is seeking to prove there was no breach of the EqA.

The tribunal or court will usually hear all the evidence from both parties before deciding whether the burden of proof has shifted:

“… the tribunal does not in practice hear the evidence and the argument in two stages. The employment tribunal will have heard all the evidence in the case before it embarks on the two-stage analysis in order to decide, first, whether the burden of proof has moved to the respondent and, if so, secondly, whether the respondent has discharged the burden of proof.”
Madarassy v Nomura, Court of Appeal (bailii.org), 2017 at para 70, quoted at para 19 of Efobi above.

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 sometimes easier than using shift in burden of proof

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. ln some cases 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, before proceedings

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.

Although the formal questionnaire procedure (below) has been 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 UK 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 formal questionnaire procedure, claimants can write to their employer (or service provider etc) asking questions, and a tribunal or court may be willing to draw inferences from failure to respond. ACAS and the government have issued guidance on asking questions:

Questions procedure – before 2014

For discrimination which happened before 6th April 2014 there was a formal “questions procedure” (or “questionnaire 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.

After proceedings have started

Disclosure of documents

Once proceedings are instituted, a tribunal or court will commonly order ‘disclosure’, by each party to the other, of relevant documents. That could include, for example, an employer’s notes of interviews, its internal and external emails, and even WhatsApp messages (see link below).

‘Privileged’ documents do not need to be disclosed. On confidential documents, see the links above.

Additional information

At least in an employment tribunal claim, a party may also ask the other for additional information, such as if there are vague statements in the employer’s ET3 (formal response) which the claimant wants clarified. The employment tribunal may be willing to order the employer (for example) to respond if it does not do so voluntarily.

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.

25th anniversary of stammeringlaw, 1999-2024