Discrimination Through the Looking-Glass: Judicial Guidelines on the Burden of Proof

Abstract

The Court of Appeal’s first (and so far only) consideration of the statutory adjustments to the burden of proof in discrimination cases is to be found in the three cases, reported together, of Igen v Wong, Chamberlain v Emokpae, and Webster v Brunel University.1 The Court of Appeal’s judgment approves, with slight amendments, the guidelines set out by the Employment Appeal Tribunal in Barton v Investec Henderson Crosthwaite Securities Ltd.2 It is argued here that both the guidelines and the reasoning behind them are seriously flawed, and have led employment tribunals and the Employment Appeal Tribunal into an approach to the burden of proof that threatens widespread findings of discrimination without any proper evidential basis. This commentary piece is in three sections. The first is a consideration of how often the incidence of the burden of proof will determine the outcome of discrimination cases—which is to say, how important it is that the courts should get the interpretation of the provision right. The second is an attempt to analyse of the mechanism of the provision aside from authority. The third examines the manner in which the Court of Appeal interprets the provision in Igen, and proposes an urgent reassessment.