Burden of Proof in Employment Tribunal Cases

By Amanda Beattie
07 Feb 2019

Knowing who has the burden of proof in an employment tribunal scenario is vital, as it will impact how you need to prepare for the upcoming case.

Of course, no-one wants to end up at tribunal, but in some cases it is unavoidable.

If you find yourself in a tough situation, and aren’t sure what you need to argue your case, begin with the question of whether you’re the one who has to prove their case.

What is burden of proof?

In UK employment law, when a case goes to tribunal, an individual has to provide proof that what they are claiming is true.

This is burden of proof. Let’s use a discrimination case as an example.

It’s only after the claimant provides evidence of discrimination, and the court believes that a case of discrimination may have occurred as a result, that the accused has to provide a defence.

Who has the burden of proof?

Typically, the claimant has to provide evidence to the court to prove that the incident actually happened.

For example, the burden of proof in an unfair dismissal case would go to the dismissed employee. (In an unfair dismissal, the only thing the employee has to show first is that they were an employee for the required period of time and they were dismissed).

This means you, the employer, must provide evidence to prove the employee was fairly dismissed, if there is evidence of the individual’s employment with you and subsequent dismissal.

In a discrimination case, the employee will be focused on how to prove discrimination in the workplace in UK court, meaning they will look for evidence that proves they’re being treated worse than another employee, due to a protected characteristic.

There are nine of these and they are:

  • Age.
  • Disability.
  • Gender reassignment.
  • Marriage and civil partnership.
  • Pregnancy and maternity.
  • Race.
  • Religion or belief.
  • Sex.
  • Sexual orientation.

Balance of probabilities

In UK employment law, tribunals make rulings based on balance of probabilities.

This is a term you may often hear in court, and can be confusing when misunderstood.

Think of this as a scale.

Burden of proof means the employee has to provide evidence, and this evidence equals a certain value. (Let’s say 20lbs)

20lbs is enough evidence to prove that the employee’s case has significant weight, and so the burden of proof falls on you.

It is then your responsibility to provide evidence that has greater weight than the employee’s argument.

If your evidence has a greater weight (21lbs), that is enough for the court to rule in your favour. If it has less weight (19lbs), then the balance of probability tips in the favour of the employee.

Discrimination cases

In an employment tribunal discrimination case, the onus is on the employee to prove there are facts from which a tribunal can decide discrimination has taken place.

Once the employee has done so, the burden of proof shifts to you, and you must prove that there is a non-discriminatory reason for the employee’s treatment.

The employee may send you questions regarding their treatment. It is advisable for you to consider answering any questions you receive from the employee, as the court may take your failure to respond into account.

When facing an employment tribunal, employee may provide documents such as their employment contract, or proof of employment letter in UK court.

They can request these documents from you via disclosure, and if you refuse to give them, the employee can apply to the tribunal for an order of disclosure.

You may also apply for an order of disclosure against your employee.

The materials you and your employees can apply for are not limited to employee documentation, it may also include:

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

Facing an employment tribunal?

If you’re staring a tribunal in the face, you may feel intimidated, and rightfully so. Tribunals are daunting and can consume all of your time, money, and motivation.

That’s why Croner are here to lend a hand. From expert guidance to representation, we can help you every step of the way. Speak to a solicitor now, 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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