The Burden of Proving Discrimination
| Published date | 01 June 2000 |
| Date | 01 June 2000 |
| DOI | http://doi.org/10.1177/135822910000400202 |
International
Journal
of
Discrimination
and
the
Law,
2000,
Vol.
4, pp. 95-117
1358-2291/20{X)
$10
©
2000
A B Academic Publishers. Printed
in
Great Britain
THE BURDEN OF PROVING DISCRIMINATION
JENIFER ROSS
The
Law
School, University
of
Strathclyde, UK
ABSTRACT
Success rates in tribunal cases involving race discrimination are extremely low,
lower even than
in
tribunal cases involving sex discrimination. The author has
looked at a number
of
tribunal decisions in cases
of
race discrimination
in
Scotland
as part
of
an attempt to identify any legal factors which might be producing that
effect. In particular this article considers whether a shift in the burden
of
proof,
compelling the drawing
of
an inference where a prima facie case is made and the
employer's explanation fails to convince, would be effective rather than a con-
tinued reliance on the principles in
King
v
The
Great Britain-China Centre. It also
identifies other issues which may be having a restrictive impact on proof
in
tribu-
nals. These include aspects
of
the definition
of
race discrimination including its
relationship with racism, the reliance on comparators and the search for motivation
in
respondents, as well as issues connected with the complex nature
of
race dis-
crimination and its proof.
DIFFICULTIES
OF
PROVING
DISCRIMINATION
'It
is important to bear in mind that it is unusual to find direct evid-
ence
of
racial discrimination. Few employers will be prepared to
admit such discrimination even to themselves.' Lord Justice Neill
described the position thus in King v Great Britain-China Centre
p.
518). It is a form
of
words used by most
employment tribunal chairs in Scotland, and it reflects one
of
the fac-
tors which makes challenging race discrimination legally so difficult.
For
someone who has received less favourable treatment and
who comes to believe that it is due to race discrimination, there are
many hurdles to cross to obtain a legal remedy. First
of
all it is
necessary to recognise what is happening in the first place, that is to
believe that it is race discrimination. One way
of
doing that might be
by organising some 'testing' either informally with the help
of
friends
or
more formally with the help
of
the Commission for Racial
Equality
or
of
a local Race Equality Council. 1
It
is also necessary to
realise that there is a legal remedy, whether in relation to employ-
ment, education, housing or other services. There is then the diffi-
96
Table
/.
/995-1996
Race and sex discrimination and unfair dismissal hearings
Race
Sex
Unfair dismissal
Total
562
574
11381
Successful Unsuccessful
109
218
4325
453
356
7056
(Figures taken from Labour Market Trends April 1997)
%Successful
19%
38%
38%
culty
of
finding accessible and expert advice about the law and the
remedies, and trying to find financial support to take the issue for-
ward. Drawing up a questionnaire, drawing up a complaint, trying to
settle the claim, then preparing the case, trying to find people pre-
pared to act as witnesses and trying to obtain other evidence, all
of
these would deter all but the most determined (or desperate) com-
plainer. Tben there is the hearing.
That it is difficult to prove race discrimination at an employment
tribunal cannot be doubted. Recent British figures graphically illus-
trate this. From figures published in 1997 we see that the figures for
success at hearings are extremely low. In Table 1 the figures are pre-
sented to reflect the percentage
of
cases which proceeded to a finding
either
of
discrimination or no discrimination after a hearing on the
merits
of
the claim.
Rates
of
success at hearings for unfair dismissal and sex dis-
crimination are well below 50% and reflect difficulties
of
proof in
such cases, but the race discrimination cases are dramatically worse,
as they have consistently been over the years. During 1998 the
author was enabled to look at Scottish tribunal decisions held by the
Commission for Racial Equality in their Scottish office (these do not
account for all the tribunal cases which have been heard in Scotland).
There have been few Scottish cases (although they are rising) and all
those examined and which proceeded to a finding appear to reflect a
similar over-all situation to that in Britain as a whole (Table 2).
During the same period the author was also enabled to inspect
the tribunal decisions which were retained by the Equal Opportunities
Commission in their Scottish office. There are a larger number
of
cases heard under the Sex Discrimination Act (as there are in Britain
as a whole) and again the success rates for the cases examined
Table 2. Scottish Race Cases examined which proceeded to a full hearing
/976-1998 (April)
Total
Successful
%Successful
81
16
19.75%
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