How discrimination is proved at tribunal
Most workers don't know that once you establish enough facts, the burden shifts to your employer to explain their conduct. This page explains how that works — and what you need to show.
This page explains the legal framework for proving discrimination. It is not legal advice. The principles here are drawn from real Employment Tribunal and appellate cases.
The two-stage burden of proof
Proving discrimination at an Employment Tribunal does not work like a criminal case. You do not need to prove discrimination beyond reasonable doubt. Instead, the law operates in two stages under s.136 of the Equality Act 2010.
Show inference facts
Show enough primary facts from which discrimination could be a reasonable inference. If you succeed, the burden of proof shifts to the employer.
Prove non-discrimination
Once the burden shifts, the employer must prove they did not discriminate. If they cannot provide a non-discriminatory explanation, you win.
“The bare facts of a difference in status and a difference in treatment only indicate a possibility of discrimination. They are not, without more, sufficient material from which a tribunal could conclude that discrimination occurred.”— Monroe v RNLI [2024]; citing Madarassy v Nomura International [2007] ICR 867
“A mere intuitive hunch that there has been unlawful discrimination is insufficient without facts being found to support that conclusion.”— Chapman v Simon [1994] IRLR 124
You need more than a feeling. You need documented facts — emails, meeting notes, witness accounts, patterns of treatment — that a tribunal could look at and say: in the absence of an explanation, this looks like discrimination.
What counts as sufficient primary facts?
Based on real tribunal and appellate cases, the following types of facts have been found sufficient to shift the burden of proof to the employer:
Documented statements
A manager's internal statement that they did not want the claimant back — made in an HR meeting — was found sufficient to shift the burden. Verbal admissions and internal communications are among the most powerful primary facts.
Timing and proximity
Where detrimental treatment closely follows a protected disclosure or the exercise of a legal right, tribunals treat timing as a primary fact capable of supporting an inference.
Patterns of conduct
A single act may not shift the burden. A pattern of treatment targeting the claimant in ways consistent with discrimination is more likely to do so — particularly where colleagues without the protected characteristic are treated differently.
Admissions and concessions
Where the employer concedes that the claimant's absence or difficulties arose from their disability, this can form a critical primary fact — especially for s.15 claims where the causal chain runs through 'something arising in consequence.'
Disability discrimination — three different claims, three different tests
Disability discrimination is not one claim — it is three distinct legal routes, each with different requirements. Many claimants plead the wrong one, or miss one entirely.
Direct disability discrimination (s.13 Equality Act 2010)
Treating someone worse because of their disability, compared to how a non-disabled person in the same circumstances would be treated. Requires an actual or hypothetical comparator.
Key case: Eyles v Ministry of Defence [2022] — the comparator must be in materially the same circumstances as the claimant.
Common mistake: Claimants often plead s.13 when s.15 is the stronger claim — particularly where the treatment was triggered by absence or conduct caused by the disability rather than the disability itself.
Discrimination arising from disability (s.15 Equality Act 2010)
Treating someone unfavourably because of something arising in consequence of their disability. No comparator required — but employer knowledge of the disability is essential.
Causal chain: Disability → something arising (e.g. absence, behaviour, capability issue) → unfavourable treatment because of that something.
Key cases: York City Council v Grosset [2018] ICR 1492 (dismissal was discrimination arising from disability); Eyles v Ministry of Defence [2022] (citing Pnaiser v NHS Business Services Authority [2016] — the "something arising" must materially influence the treatment).
Knowledge requirement: If your employer genuinely did not know and could not reasonably have known about your disability, s.15 cannot succeed (UKEAT/0001/15).
Common mistake: Failing to establish that the employer had actual or constructive knowledge of the disability before the treatment occurred.
Failure to make reasonable adjustments (s.21 Equality Act 2010)
Where an employer fails to take reasonable steps to remove a substantial disadvantage caused by a provision, criterion or practice (PCP) applied to a disabled person.
Three required elements:
- The employer's PCP (provision, criterion or practice).
- That the PCP puts disabled people at a substantial disadvantage compared to non-disabled people.
- That a reasonable adjustment was not made.
Key case: Serco Ltd v Dahou; Barton v Royal Borough of Greenwich — without findings on the PCP, the comparator group, and the substantial disadvantage, a tribunal cannot assess what adjustment would be reasonable.
Common mistake: Failing to identify the specific PCP. Claimants often describe the negative treatment without identifying the rules or practices causing the disadvantage.
Whistleblowing claims — the same logic, different statute
Whistleblowing claims under s.47B of the Employment Rights Act 1996 use an analogous burden-shifting framework. To shift the burden, a claimant must show:
1. A qualifying protected disclosure: Information disclosed in reasonable belief that it tends to show wrongdoing, and is in the public interest. Personal grievances do not qualify.
2. A detriment in the employment field: The detrimental act must occur in your capacity as a worker.
3. A causal link: The protected disclosure must have been more than a trivial influence on the employer's treatment.
Key cases:
- Fecitt v NHS Manchester [2012] ICR 372 — “material influence” standard confirmed.
- Jesudason v Alder Hey Children's NHS Trust [2020] ICR 1226 — disclosure must be of information, not merely a complaint.
- Tiplady v Bradford MDC [2020] — detriments suffered as a member of the public, not as a worker, fall outside s.47B.
Important: An employer cannot be vicariously liable for a colleague victimising you because of your whistleblowing. If co-workers are retaliating, you must show the employer itself (through its agents or managers) was responsible for the detriment — not just that colleagues behaved badly.— Source: Fecitt v NHS Manchester [2012] ICR 372
Why burden of proof arguments fail — what the cases show
The cases reveal consistent patterns in why claimants fail to shift the burden of proof at Stage 1:
WHAT FAILS
- ✗ Bare assertions without documented facts
- ✗ Relying on a feeling or intuition without supporting evidence
- ✗ Describing treatment without linking it to the protected characteristic
- ✗ Failing to identify a comparator for direct discrimination
- ✗ Failing to show employer knowledge for s.15 disability claims
- ✗ Assuming timing alone is enough without additional facts
- ✗ Relying on co-worker conduct for whistleblowing claims
WHAT WORKS
- ✓ Contemporaneous documents — emails, letters, meeting notes made at the time
- ✓ Internal admissions by decision-makers — even informal ones
- ✓ Concessions made by the employer during proceedings
- ✓ A clear pattern of different treatment compared to colleagues
- ✓ Proximity in time between the protected act and the detriment
- ✓ Evidence that the decision-maker knew about the protected characteristic or disclosure before the treatment occurred
Know your burden before you file
Understanding what facts you need to show before you go to tribunal could be the difference between your claim succeeding and failing at the first stage. The ET Deadline Calculator and Evidence File Builder are good places to start.
All case law references on this page are drawn from real Employment Tribunal and appellate decisions. This page does not constitute legal advice.