Burden of proof and employment law


From time to time, as an employer you’ll come across employment law terms that you need assistance with understanding.

Burden of proof is one example. It’s a legal term that’s common in employment tribunals—you can call us immediately on 0800 028 2420 if you need help understanding the term.

Or you can read our guide for all the details.

What is burden of proof?

It’s a legal term used to describe a claimant’s responsibility to submit a prima facie (accepted as correct, until proven otherwise) case that their argument, or assertion, is correct.

When it comes to burden of proof, employment law disputes require an employee to prove there are facts from which a tribunal can decide in their favour, in the absence of any contradictory evidence.

For example, with regards to burden of proof, unfair dismissal cases will require a claimant to evidence that the respondent’s decision to dismiss them was unfair.

The same applies to other employment tribunal claims, including discrimination and refusal of a statutory right.

Once a claimant has been able to satisfy the employment tribunal, burden of proof will then shift to the respondent. This means the employer, who’ll have an opportunity to argue that the claim is incorrect.

However, before this can occur the tribunal must be happy the claimant has fulfilled their burden of proof beyond a reasonable doubt.

It’s worth noting the burden of proof may shift back and forth several times during a tribunal.

This is as each party tries to establish their argument, while placing onus on the other to satisfy the court.

The employment tribunal judge must then make a decision on the claim based on the ‘balance of probabilities’.

Peninsula Business Services is here to help

If you need assistance with employment law terms, you can get in touch with us for immediate help.

This can include employment tribunals and early conciliation, or any other matter your business is facing.

In operation since 1983, we’ve assisted tens of thousands of small and medium-sized businesses with employee disputes and many other issues.

You can request a call back from us if you need assistance. You can even use our business consultancy services for 24/7 insights into HR, employment law, and health & safety issues.

The different types of burden of proof

There’s no significant difference between ‘onus of proof’ and ‘burden of proof’, however the former is terminology typically used in US law as opposed to the UK.

The concept of burden of proof will apply in all employment law disputes ranging from discrimination to refusal of a statutory right.

In claims for breach of contract burden of proof must also be established, which may be more difficult if there's only an oral agreement.

The burden of proof and the Equality Act 2010

To make this clear, section 136 of the Equality Act 2010 states:

 “If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.”

There’s a useful case law example of how burden of proof works in practice. You can see this in the recent Court of Appeal case of Ayodele v Citylink (2017).

In this case, the claimant failed at the first hurdle in their attempt to claim race discrimination as they could not establish a prima facie case they’ve been treated less favourably due to their race.

As a result, the court had no option other than to dismiss their claim.

Need our help?

Get in touch and we’ll help with any employment law questions your business has: 0800 028 2420.

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