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Swing the pendulum

Shifting the burden of proof in discrimination claims requires an employee to do more than prove a possibility of discrimination, say Deshpal Panesar and Mark Sutton

30 November 2007

In discrimination cases the issue of whether the burden of proof shifts to the respondent often determines whether the claim succeeds. Accordingly it is vital to be clear what has to be established for the burden to shift from the outset.

There has been considerable uncertainty regarding how the shifting burden works, partially caused by the history of the concept. Before the current provisions were enacted the approach adopted was set out in King v Great Britain–China Centre [1992] ICR 516 CA and Glasgow City Council v Zafar [1998] ICR 120 HL. Where a claimant established a difference of treatment on grounds of in sex or race, and less favourable treatment, the tribunal was entitled to ask the employer for an explanation for the difference. If that explanation was unsatisfactory the tribunal could, but was not obliged to, draw an inference of discrimination on the prohibited ground.

However in 1997 the Burden of Proof Directive (97/80/EC) required...

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