Burden of Proof in Equality Claims
This issue was addressed in case ADJ-0001582. The Labour Court case of Ms. Niscayah Limited –v- Rachel McCarthy EDA1328 was quoted where the Labour Court set out;
“Where a prima facie case is made out the onus shifts to the respondent to prove the absence of discrimination. This requires the Respondent to show a complete dissonance between the protective characteristic relied upon (in this case family status) and the impugned act or omission alleged to constitute discrimination. In Wong –v- Igen Limited and Others 20058 IRLR 258 (a decision of the Court of Appeal for England and Wales) Peter Gibson L.J. pointed out that where the Respondent fails to show that the discriminatory ground was anything other than a trivial influence in the impugned decision the complaint will be made out. In practice the Court will look to the Respondent to show that the protected characteristic relied upon had no material influence whatsoever in arriving at the impugned decision”.
The decision of the UK Employment Appeals Tribunal in Barton –v- Investec Henderson Crothwaite Securities Limited 2003 IRLR 332 is authority for the proposition that where the burden of proof rests on the Respondent a Court should normally expect cogent evidence to discharge that burden since the facts necessary to prove a non-discriminatory explanation would normally be in the possession of the respondent.
It is helpful that this has been set out.
*Before acting or refraining from acting on anything in this guide, legal advice should be sought from a solicitor.
**In contentious cases, a solicitor may not charge fees or expenses as a portion or percentage of any award of settlement.