A claim against an employer for racial discrimination has to be proved to the court of law by the person making the complaint, the applicant, not disproved by the employer. In other words, the burden of proof lies with the employee. The applicant has to prove discrimination by the employer 'on the balance of probabilities'. This means that, although a Tribunal might entertain doubt as to whether the employer has exercised unlawful discrimination, as long as the Tribunal more than half believes that the employer has discriminated it must decide in favour of the applicant. It is unusual to find direct evidence of racial discrimination.
Few employers are prepared to admit discrimination even to themselves.
Whether or not discrimination can be be proved will often depend on what inferences a Tribunal can draw from the primary facts. Where, for example, an employee complains of failure to promote on racial grounds the evidence may point to the possibility of racial discrimination. In those circumstances the Tribunal may look to the employer for a non discriminatory explanation. If no such explanation is put forward or if the Tribunal finds the supposed explanation inadequate or unsatisfactory it is open to the Tribunal to infer that the discrimination was on racial grounds. The difficulties of proof have been recognised in the Race Relations Act and section 65 makes provision for a questionnaire to be used by the applicant.