Landmark ruling on burden of proof in discrimination cases

Employers facing discrimination charges will lose their cases unless they provide detailed evidence that they did not discriminate, following a landmark Court of Appeal decision.

The decision, in the case of Wong v Igen, was welcomed by all three equality commissions, which had expressed concern that the 2001 Burden of Proof regulations were not being implemented consistently or correctly by employment tribunals.

But legal experts said the move would place an extra burden on employers to ensure their processes were watertight.

The judgment makes it clear that, after individuals have proved facts which suggest that they have been treated unfavourably because of discrimination, the burden shifts to the employer to provide a non-discriminatory explanation for their treatment of the employee.

If the employer cannot do so, a finding of discrimination will be made.

This shift should enable most parties to settle claims before they are lodged or reach court, according to the Commissions for Racial Equality, Equal Opportunities and Disability Rights.

Jenny Watson, deputy chair of the Equal Opportunities Commission, said employers should focus on improving HR processes.

“Setting in place systems and procedures which prevent discrimination will prevent discrimination occurring in the first place, thus minimising the cost and stress of tribunals,” she said. “It will also help employers to provide vital evidence if they do face a legal challenge.”

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