Burden of proof

6 min read · Reviewed 21 June 2026

You do not have to prove discrimination outright at the start. The law splits the job in two. This guide explains the shifting burden of proof — the idea at the heart of every discrimination case — in plain words.

Two stages, not one

Discrimination is rarely admitted and rarely written down. The law recognises this. So it splits the burden of proof. First, you must show enough for a tribunal to conclude, in the absence of any other explanation, that discrimination could have happened. If you clear that first stage, the burden shifts: the employer must then prove that what it did had nothing to do with the protected characteristic.

Why status plus bad treatment is not enough

This is the point most claims turn on. Showing that you are in a protected group and that you were treated badly is not, by itself, enough to shift the burden. Those two facts together prove only a possibility — not that a tribunal could conclude discrimination. The courts call what you need 'something more'.

What counts as 'something more'

'Something more' is the extra fact that makes discrimination a real inference rather than a bare possibility. Common examples:

• Suspicious timing the employer cannot explain (for example, a detriment that lands soon after you complained).
• A real comparator — someone in materially the same position, without your protected characteristic, who was treated better.
• An unexplained departure from the employer's own written procedure.
• A reason for the treatment that keeps shifting, or that the evidence does not support.

What this means for how you build a claim

A well-built claim does not just say 'I am in group X and I was treated badly, so it must be discrimination'. It identifies the 'something more' for each allegation, and leads with the point the employer can least easily explain away. Framing the issue this way is what shifts the burden — and a poorly framed issue can fail the test even when the underlying facts are strong.