In discrimination cases the claimant bears the initial burden of proving, on the balance of probabilities, facts from which a tribunal could conclude that there has been discrimination.
At that point the burden of proof shifts and it is for the employer to show that the unfavourable treatment was not discriminatory. Inappropriate comments will make it harder to convince a tribunal that any unfairness (in the recruitment process, the work situation, or any dismissal) was not also discriminatory, particularly if they have come from management.
Writing in the HR Chronicle, partner Anthony Sakrouge discusses how the tribunals will approach cases involving age discrimination.
Anthony heads up the employment team. He acts for both employers and employees, specialising in contentious work and negotiations relating to the complex starting and leaving packages of directors and other senior employees. He advises on and handles disputes involving bonuses, entitlements under incentive plans, breach of contract, restrictive covenants, confidentiality, the duty of fidelity, commission, share disputes, discrimination, whistle-blowing and unfair dismissal.