Burden of Proof in Employment Tribunal Cases

By Amanda Beattie
04 Feb 2022
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Before making a claim in a tribunal, an individual needs to prove they have a case. The burden of proof falls on the claimant. Basically, it means that they need to present clear, valid facts for the judge to consider if they will accept the case.

No one wants to end up in a tribunal, but in some situations it’s inevitable. If you find yourself facing a claim as an employer, we are here to help. We will support you every step of the way through our Employment Tribunal services.

Call our experience advisors for simple, clear advice on 01455 858 132.

Let us now explain why you need to know about burden of proof, meaning you will prepare better for any possible court case.

What is burden of proof?

Burden of proof means that the individual making an employment law case must prove they have reason to do so. As legal requirement, it provides the basis for starting a claim.

An employee must provide factual evidence before they can make a claim against their employer. The judge will weigh the reasons and facts presented by the claimant. Only after they acknowledge the case, and the validity of their reasons, will the defendant need to present their version.

Like many other legal terms, this one might feel difficult to grasp. While vital to any employment law case, it might not sound so straightforward at a first glance. By understanding how it works, you can better prepare for, and manage to face, such a situation.

Burden Of Proof Meaning

The burden of proof by UK employment law tends to stay with the employee, as the claimant. However, as an employer you want to ensure you have all the necessary documents to validate your decision to dismiss them. The same applies to any decision you take - that a disgruntled staff member might decide to dispute in court.

Also, be prepared to prove that you treat all your staff equally in case you have to deal with a discrimination claim. Unfair dismissal and discrimination tend to stand out as the two top types of issue workers take to court.   

Burden of proof in discrimination cases in the UK

In a discrimination case, the UK court will focus on what evidence the claimant brings that shows discriminatory treatment.

What could an employee bring to court to satisfy the burden of proof for discrimination? They need to demonstrate that they have been treated less favourably because of one of the nine protected characteristics:

The claimant can use a variety of documents as burden of proof in an employment tribunal. They can start with their employment contract, and request meeting minutes or access to email contents. See below a list of possible items that you will have to provide if the employee you dismissed asks:

  • Job ads
  • Handbooks
  • Pay-slips
  • Job description
  • Sickness, bullying, harassment, disciplinary and grievance policies
  • Memos
  • Emails
  • Appraisals
  • Timesheets
  • Statistical evidence

They can request these documents from you via the disclosure process, as explained by the government. If you refuse to provide them, they can apply to the tribunal for an order of disclosure.

Burden Of Proof UK

Whenever a work dispute arises, make sure you follow the necessary, fair process to resolve matters. Also, keep clear, factual records and put measures in place to minimise risks and ill effects. By doing so, you ensure you will have the necessary proof in case an employee makes a discrimination claim. 

Burden of proof examples

Let’s use a real-life example to visualise how UK law regulates burden of proof.

An employee has recently requested time off to observe a religious holiday, which you granted. However, they have been underperforming for months. You followed due process to help them improve, and now have reached the point where you decide to dismiss them. Shortly after their return to work, you hold a dismissal hearing and communicate you will let them go. You explain that they failed to follow the improvement planned agreed upon, and you can no longer keep them.

A week later, you learn they will make a discrimination claim against you, saying you dismissed them on religious grounds. As a claimant, they will have to demonstrate that you treated them differently compared to other underperforming colleagues. They will also have to prove that your decision was motivated by them taking leave to observe religious customs.

In such a situation, your records should unequivocally show the reasons for their dismissal. Documents such as written warnings, meetings minutes and agreed upon action plans will help your case.

What could help the employee in this hypothetical situation put together a dismissal case? They could use any written derogatory comments made about their religion, for example. Or bring a witness to testify that either colleagues or management made such comments.

The burden of proof employment law requirements for discrimination might be difficult to uphold. However, it isn’t impossible. Ensure no such comments as in the situation above, if ever made in the workplace, go unnoticed or unaddressed.

But how much evidence does the claimant need to bring, and how much counterevidence will the defendant need?

Balance of probabilities in UK law

In UK employment law, tribunals make rulings based on balance of probabilities. While often heard in court, this term can confuse and create misunderstandings.

Let us clarify what this term means in relation to the matter we are discussing now. You need to think of it as a scale, and the direction in which the balance tips.

Burden of proof means the employee has to provide evidence, and this evidence equals a certain value. Let us say, for the purpose of this demonstration, that evidence weighs 20 lbs. The court decides the 20 lbs gives significant weight to the claimant’s case. Next, the burden of proof transfers to you, as the defendant. You need to provide evidence that weighs more, at least 21 lbs, to win.

If the evidence you give in response only ways 19 lbs, the balance of probability tips in the favour of the employee.

Don’t face an employment tribunal alone!

Facing a tribunal can feel intimidating, and rightfully so. You might already have all the evidence you need to support your defence and not realised it. You have probably had to deal with such a situation before.

Facing a tribunal can feel intimidating, and rightfully so. You might already have all the evidence you need to support your defence and not realised it. You have probably had to deal with such a situation before.

We are here to lend a hand and support you through the process. By getting support early you might even manage to avoid a tribunal through early conciliation. Call our highly trained, experienced legal team on 01455 858 132.

About the Author

Amanda Beattie

Amanda represents corporate clients and large public bodies, including complex discrimination and whistleblowing claims. Amanda also drafts and delivers bespoke training regarding all aspects of employment law, including ‘mock tribunal’ events; in addition she also frequently drafts employment law articles for various publications for Croner and their clients.

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