The Burden of Proving Discrimination

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 continued 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 tribunals. 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 discrimination and its proof.