Defence of Rights and the Right of Redress

The directives make clear that everyone who is a victim of discrimination or who considers that they have been unfairly treated because of their personal characteristics should have adequate means of legal protection and an effective right of redress (i.e. they should be able to get things put right).

It is open to the government in each country to decide whether this is through judicial procedures — i.e. through the system of criminal or civil justice — or through administrative arrangements, such as tribunals. Governments can also choose to encourage conciliation and set up a system for sorting out cases of unfair treatment voluntarily through discussion instead of through the legal route.

The directives impose an obligation on governments to ensure that people bringing complaints of unfair treatment have the right to be supported and represented by their trade union or by specialist associations or organisations. At the same time, they have to make sure that the sanctions to be applied in cases where discrimination has occurred are effective, proportionate and dissuasive’.

In other words, the penalties for discrimination should bear some relationship to the harm done and should act as a deterrent against behaviour of this kind. To strengthen protection further, governments are required to introduce legislation under which the burden of proof in civil cases i.e. where criminal charges are not involved) is shared between the person claiming to have been treated unfairly and the person against whom the complaint is being made.

This means that the responsibility for proving or disproving the case is divided between the two. The person making the complaint has first to show that the facts are consistent with discrimination having occurred (that there is prima facie evidence of this) and that there is therefore a case to answer. The person accused of discrimination then has to demonstrate that they did not act unfairly and that there was a legitimate reason for what they did.

The onus is, therefore, on the accused to convince the court or tribunal that they did not behave in a discriminatory way. And the person claiming discrimination is not expected to produce conclusive proof of this, something which they are unlikely to be in a position to do. Governments are obliged, in addition, to ensure that people complaining about discrimination are adequately protected from victimisation or retaliation, which if unchecked could deter them from exercising their right to equal treatment.

This also goes for witnesses in discrimination cases who need to receive the same protection from victimisation to encourage them to give evidence. Governments are, therefore, required to put measures in place to dissuade those accused of discrimination from reacting in this way. These measures, in particular, need to protect employees against the possibility of dismissal if they lodge a complaint or take legal action against their employers or if they give evidence in cases of unfair treatment.