Sharing the Burden of Proof

According to both Directives, the burden of proof should shift to the person accused of discrimination once the person bringing the complaint has established facts from which it can be presumed that there has been discrimination. It is then up to the person accused to prove that they did not act in a discriminatory way.

The requirement that the burden of proof should be shifted, or shared, in this way is a recognition of two general aspects of discrimination cases. The first is that those suffering discrimination are rarely in a position to prove it. The second is that only those who are accused of discrimination are likely to have access to the full facts of the case.

Although this shifting of the burden of proof is a recent feature of legislation in many countries, it is not new. It has been widely adopted before as part of new laws on equality between men and women. Provisions in legislation on the burden of proof.