Legal principle
A difference in protected characteristic and a difference in treatment are not, by themselves, enough to shift the burden of proof. There must be something more from which discrimination could properly be inferred.
What the court decided
The Court of Appeal cautioned against shifting the burden merely because the claimant belongs to a protected group and suffered adverse treatment.
The practical test
- 1
Establish the adverse treatment and relevant surrounding facts.
- 2
Identify evidence capable of connecting that treatment to the protected characteristic.
- 3
Only then require the respondent to prove an adequate non-discriminatory explanation.
How tribunals apply it
- The additional evidence may be circumstantial, including inconsistent reasons or unequal application of rules.
- A tribunal must explain the facts from which it drew any inference.
- Poor treatment or unfairness is not automatically discriminatory treatment.
Connected legislation
WorkDisputes tribunal data
Recent decisions involving related issues
These decisions are selected from topic classifications in our public Employment Tribunal dataset. A matching topic does not mean the decision applied this authority directly.
Unfair Dismissal, Discrimination, Breach of Contract and Other
Employer: Monolith UK Ltd
All claims were struck out due to non-compliance with tribunal orders and failure to actively pursue the claims.
Legal Issues (5)
- Deposit orders under Rule 39
- strike-out for non-payment under Rule 40(4)
- definition of disability under s.6 Equality Act 2010
- burden of proof
- strike-out for non-compliance under Rule 38
Reference: 3303832/2024
Unfair Dismissal, Discrimination and Other
Employer: Medway Council
All claims were dismissed on the merits after a full hearing; the Tribunal found no unlawful treatment or breach of the relevant regulations.
Legal Issues (4)
- Interpretation of the Fixed-term Employees Regulations 2002 (less favourable treatment)
- pregnancy/maternity discrimination under s18 Equality Act 2010
- automatic unfair dismissal under regulation 10 Maternity and Parental Leave Regulations 1999 (duty to offer suitable alternative vacancy during maternity leave)
- whether a lower-paid role must be offered with salary protection
Reference: 6012100/2024
Discrimination, Whistleblowing and Breach of Contract
Employer: Sheffield City Council and Others
Wrongful dismissal claim struck out (lost); other claims remain ongoing, resulting in a split substantive outcome.
Legal Issues (4)
- Amendment of claim
- strike out and deposit orders for lack of reasonable prospects and non-compliance with orders
- time limits
- the test for unfair dismissal in whistleblowing cases
Reference: 1801462/2024
Discrimination, Whistleblowing and Harassment
Employer: Maximus UK Services Ltd and Ingeus UK Ltd
All claims were struck out, initially some for having no reasonable prospect of success and later the remaining claim for failure to comply with a tribunal order and not actively pursuing the case.
Legal Issues (4)
- Striking out under Rule 38 of the Employment Tribunal Procedure Rules 2024 for no reasonable prospect of success and for failure to comply with a tribunal order
- time limits for bringing discrimination claims
- requirements for sufficient particularisation of claims
- application of Cox v Adecco and Moustache v Chelsea and Westminster NHS Foundation Trust
Reference: 3306242/2024
Unfair Dismissal and Discrimination
Employer: F42 Travel Ltd
Both claims were dismissed in their entirety because the claimant failed to attend the hearing and the claims had no reasonable prospects of success.
Legal Issues (4)
- Qualifying service for unfair dismissal (section 108 Employment Rights Act 1996)
- strike-out for non-attendance under rule 47
- requirement to plead facts supporting a discrimination claim
- time limits for breach of contract claims
Reference: 6035009/2025
Discrimination, Whistleblowing and Other
Employer: Arriva Kent Thameside Ltd
All claims were dismissed because the claimant failed to establish protected disclosures, discrimination, or any unlawful treatment; some claims were also barred by a prior settlement agreement.
Legal Issues (6)
- Protected disclosure definition
- public interest requirement
- causation under s.47B ERA
- discrimination burden of proof (Igen v Wong)
- effect of COT3 settlement and Henderson v Henderson principle
- time limits and just and equitable extension
Reference: 6014056/2024