ОСОБЛИВОСТІ ДОКАЗУВАННЯ У СПРАВАХ ПРО ДИСКРИМІНАЦІЮ У СФЕРІ ПРАЦІ

Abstract

This article reveals the particularities of proof in cases of discrimination in the field of labour. On the basis of the analyzed special literature, legislation in force, international labour standards and positive legislative experience of foreign countries, specific proposals and recommendations on the improvement of proof mechanisms are made. Special attention is paid to the shift of the burden of proof and the formation of the "presumption of discrimination" concept, saying that in certain cases, when there is evidence prima facie justifying the allegations, the burden of proving the absence of discrimination can be shifted to the employer. It is determined that in order to recognize the fact of discrimination, it is first necessary to establish two circumstances. First, there is the difference in attitude towards employees. Second, this distinction must be based on prohibited features. The case law of the European Court of Human Rights on discrimination in the field of labor is analyzed and the main positions of the court on establishing the fact of discrimination are highlighted. Types of evidence in cases of discrimination in the field of labor are considered. In cases of discrimination, written evi- dence, testimony of witnesses, physical evidence, expert opinions, etc. are used. The list of admissible types of evidence may vary from country to country. To solve this problem, it is proposed to expand the range of admissible types of evidence (testing, statistics, audio and video recordings, questionnaires). Requirements for the conditions of admissibility of evidence in cases of discrimination in the field of labor are proposed. Special attention is paid to the position of the European Court of Justice. The article also describes the national mechanism for proving discrimination in the field of labor. It is also proposed to amend national legislation to improve the mechanism for proving discrimination.