“Burden of Proof”in Employment Tribunal Claims

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In the case of Igen v Wong 2005 ICR 337 the Court of Appeal set out 13 practical guidance points as to how the “shifting of the burden of proof” rules in discrimination cases should be applied.

In practice, these ‘guidance points’ are to apply a two stage test from which:

a) The employee has to prove facts from which the conclusion could be drawn that the employer has committed an unlawful act of discrimination.

b) If the employee has proved facts from which conclusions could be drawn that the employer has treated the employee “less favourably” then the burden of proof shifts to the employer that the treatment was in no sense on the grounds of a protected characteristic.

In the authority of Madarassy v Nomura International Plc [2007] EWCA Civ 33 (26 January 2007) the Court of Appeal made the following observations, which claimants would be wise to observe:

“I do not underestimate the significance of the burden of proof in discrimination cases. There is probably no other area of the civil law in which the burden of proof plays a larger part than in discrimination cases. It is for the complainant to prove the facts from which, the employment tribunal could conclude, in the absence of an adequate explanation, that the respondent committed an unlawful act of discrimination.

Sam Stone and his wife Amy are employment consultants with 26 years combined experience. Over the last decade Sam and Amy have helped thousands of clients with internal employment disputes. Sam and Amy can have a telephone consultation with you or write you a custom letter of grievance if:

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