As a result of this absence of clear-cut evidence, the test for establishing discrimination (ie, the “burden of proof”) will be central to any discrimination case.
A two-stage test
In order to address the evidential difficulties in discrimination cases, the tribunals have developed a two-stage test for proving discrimination. First, the claimant (usually the employee or former employee) must establish a case that, on its face, amounts to discrimination (a “prima facie” case). If he is able to do so, the burden of proof will then shift to the respondent (in most cases, the employer), who will have to show that it did not discriminate against the claimant.
At the first stage of this process, the tribunal will consider what inferences it could draw from the evidence presented and whether this could amount to discrimination. Such inferences may be drawn from, for example, an evasive or equivocal reply to a discrimination questionnaire, the breach of relevant code of practice or evidence from the employer’s equal-opportunities monitoring data. If the burden does move to the respondent then it must prove, on the balance of probabilities, that the treatment was “in no sense whatsoever” on the grounds of sex, race, age and so on. A bare explanation for the allegedly discriminatory conduct will not be enough; it must be backed by evidence.
- Burden of proof in discrimination cases, TimesHigherEducation.co.uk, February 18, 2009.
【Burden of proof?】相关文章:
最新
2020-09-15
2020-08-28
2020-08-21
2020-08-19
2020-08-14
2020-08-12