What Is the Burden of Proof in Employment Tribunal Cases?

Losing an employment tribunal case often comes down to who carries the burden of proof – and whether they meet it.

Introduction

The burden of proof employment tribunal requires the claimant to show, on the balance of probabilities, that their version of events is more likely than not. This fundamental legal principle determines who must prove what in cases like unfair dismissal or discrimination, with the burden sometimes shifting to the respondent under specific rules.

Grasping this concept is crucial for self-representing parties, as tribunals do not assume facts in your favour – you must provide credible evidence. In this guide, we break down the basics, the standard applied, when the burden shifts, and case-specific rules for common claims.

You will learn how to build a strong case, avoid common pitfalls, and understand claimant vs respondent burden to improve your chances of success.

Understanding the Burden of Proof

In employment tribunal proceedings, the burden of proof refers to the obligation on one party to prove the facts supporting their claim or defence. Unlike criminal courts, which require proof beyond reasonable doubt, employment tribunals operate on civil standards. This means the party with the burden must show their case is more likely true than not.

The concept originates from common law principles and is applied consistently across tribunal claims under the Employment Tribunals Act 1996 and related rules. Misunderstanding it can lead to dismissed claims, even with strong merits, because tribunals judge solely on presented evidence.

The Balance of Probabilities: The Standard of Proof

The evidence threshold in employment tribunals is the balance of probabilities, meaning the tribunal asks: is it more likely than not that the claimant’s facts occurred? This lower standard than criminal cases allows decisions based on everyday likelihoods rather than absolute certainty.

For example, if a claimant alleges unfair dismissal due to misconduct, they must show dismissal happened, then evidence suggests the reason was unfair. The tribunal weighs all evidence, including witness statements and documents, to decide which side tips the scale.

This principle ensures fair, practical justice for workplace disputes, focusing on real-world probabilities rather than perfection in proof.

The Burden Lies on the Claimant

As the party bringing the claim, the claimant must prove the essential elements, such as employment status, the unlawful act (e.g., dismissal or discrimination), and resulting loss. Without this foundation, the case fails regardless of the respondent’s weaknesses.

This claimant vs respondent burden reflects the principle that you assert, you prove. Tribunals expect clear timelines, documents like contracts or emails, and witness evidence to meet this threshold.

Failure to discharge the burden at the outset means the respondent need not fully defend, saving time and costs.

When the Burden Shifts to the Respondent

Under specific statutes, the burden reverses after the claimant establishes basic facts. This protects vulnerable claimants from hidden employer motives.

For instance, in whistleblowing or detriment claims, showing protected disclosure and adverse treatment shifts the onus to the employer to prove an unrelated reason. Tribunals strictly apply this to prevent evasion of liability.

Understanding these shifts is key to strategy: gather enough initial evidence to trigger the reversal.

Burden of Proof in Unfair Dismissal Claims

The claimant must first establish they qualify for protection (two years’ service usually) and were dismissed. The burden then passes to the respondent to show the principal reason and that dismissal was within the range of reasonable responses.

Tribunals do not substitute their view for the employer’s but check procedural fairness and reasonableness. Evidence like investigation notes or hearing records is crucial for respondents.

If no potentially fair reason is shown, the dismissal is automatically unfair, placing full burden back on the employer.

Burden of Proof in Discrimination Cases

Equality Act 2010 s136 provides a two-stage test: claimant shows facts inferring discrimination, then respondent must prove otherwise.

Discrimination claims feature a statutory reverse burden. Stage one: claimant adduces facts from which the tribunal could conclude unlawful discrimination occurred. Emails showing bias or unexplained treatment often suffice.

If met, stage two shifts to the respondent to prove no discrimination motivated the act. Failure means the claim succeeds.

This claimant vs respondent burden adjustment addresses employers’ information advantage, but claimants must still start strong with cogent evidence.

Practical Tips for Managing the Burden of Proof

Start with a clear narrative linking facts to law. Collect contemporaneous documents, witness statements, and timelines. Use bundle preparation to highlight persuasive evidence.

For claimants, front-load prima facie case; for respondents, robustly defend shifts. Practice oral evidence to build credibility.

Seek ACAS conciliation first – it clarifies positions without full burden testing.

• Organise evidence chronologically.
• Corroborate oral claims with documents.
• Anticipate counter-arguments.

Conclusion

Mastering the burden of proof employment tribunal is essential for self-represented parties in UK employment disputes. Whether claimant or respondent, success hinges on evidence meeting the balance of probabilities, with strategic use of statutory shifts.

Common claims like unfair dismissal and discrimination have nuanced rules – know them to avoid pitfalls. Building a credible case from the start maximises your chances.

Prepare thoroughly, focus on quality over quantity, and remember tribunals favour reasoned, evidenced arguments.