I. Introduction
Proof is a fundamental problem facing those who experience discrimination in the workplace. Workplace discrimination is increasingly subtle and less overt, making it difficult to identify and prove in legal proceedings. And yet, statutory discrimination law in Australia typically relies on an individual claimant proving all aspects of their case. Unlike in other jurisdictions such as the United Kingdom (UK), or under the Fair Work Act 2009 (Cth) (‘FWA’), there is generally no shifting burden of proof in Australian discrimination law in cases of direct discrimination.Footnote 1 This shifting burden refers to cases where, after a claimant presents some level of evidence, or establishes some elements of a claim, some evidentiary onus shifts to the respondent. Rather, in cases of direct discrimination, complainants must generally prove all elements of a claim on the balance of probabilities. The question, then, is whether a shifting burden of proof would be sufficient to address these problems of proof.Footnote 2
Drawing on a multi-year, mixed methods empirical study of the enforcement of age discrimination law in Australia and the UK,Footnote 3 this article considers the ‘problem of proof’ in discrimination law, and how it should best be addressed in the statutory framework and case law. In this context, ‘the problem of proof’ encompasses both potential difficulties in obtaining evidence to prove a discrimination case, and how a discrimination case is proved at law.
The UK was selected as an appropriate comparator for considering the question of proof, and the efficacy of discrimination laws more generally, given its similar legal system and common legal tradition to Australia, and similar statutory model for prohibiting discrimination. However, unlike in Australia, the UK has a shifting burden of proof in discrimination matters, meaning there is scope for mutual learning between the jurisdictions. Utilising explanatory comparative legal analysis, then, this article seeks to identify similarities and differences between jurisdictions, and account for these variances,Footnote 4 reflecting what Örücü describes as a ‘problem-solving’ or sociological approach to comparative law.Footnote 5
This article’s specific focus on age discrimination law reflects the common understanding that age discrimination claims are notoriously unsuccessful in Australia.Footnote 6 Indeed, at the federal level, it took nearly 20 years for a successful age discrimination case to be handed down.Footnote 7 Yet age discrimination is frequently reported by people of all ages: in 2021, the Australian Human Rights Commission (‘AHRC’) found that the majority of Australians (63%) had experienced ageism in the last five years; this was most commonly reported by young people (at 68%).Footnote 8 Age discrimination occurs across the life cycle of employment, from recruitment, to performance evaluation and training, to dismissal.Footnote 9 Given the prevalence of age discrimination, and the evident difficulties in bringing a successful claim, age is a critical case for examining the impact of proof on claiming. Further, most claims of age discrimination relate to employment, reflecting the social, economic, and emotional importance of work.Footnote 10 While this article draws on an empirical case study of age discrimination law, and uses the ground of age as a lens to facilitate analysis, the findings and argument offer broader insights for discrimination law more generally.Footnote 11 Reflecting the focus of most age discrimination complaints and case law, the emphasis of this article is primarily on how issues of proof relate to claims of direct (not indirect) discrimination.Footnote 12
Using age discrimination as a lens to facilitate analysis, and drawing on the comparative UK experience, and that under the FWA and Australian Capital Territory (‘ACT’) discrimination law, this article considers what difference a shifting burden of proof would make to Australian direct discrimination law. It argues that while a shifting burden of proof may be important in finely balanced cases, and should be adopted for that reason, it is insufficient to overcome the limits of individual enforcement, and the dramatic information disparities between claimants and respondents. The problem of proof, then, demands a fundamental rethink of the statutory dependence on individual enforcement of discrimination law.
This article commences with a broad overview of the age discrimination law framework in Australia, and the questions of proof that arise under statute (Part II). Then, the problem of proof is contextualised more generally, drawing on the findings of the empirical study, to consider how proof is being exacerbated by the changing nature of discrimination and information asymmetries at work (Part III). Part IV flags the problems that proof might pose for relying on individual enforcement mechanisms to address discrimination. The article then considers how the problem of proof is addressed in different jurisdictions, through legislative shifting of the burden of proof in the UK, the FWA, and the ACT (Part V). In Part VI, recommendations are made to better address problems of proof, which go beyond a shifting burden of proof. Part VII concludes.
II. The age discrimination law framework
In Australia, age discrimination is prohibited at state, territory and federal level. The various laws have numerous similarities, but also significant doctrinal differences.Footnote 13 The federal law, the Age Discrimination Act 2004 (Cth) (‘ADA’), provides that a person directly discriminates against another if:
(a) the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of a different age; and
(b) the discriminator does so because of [age].Footnote 14
In the ACT, the Discrimination Act 1991 (ACT) (‘ACT Act’) offers a more straightforward definition of discrimination: s 8(2) provides that
a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.’Footnote 15
In each jurisdiction, age discrimination is prohibited in employment, including in recruitment, setting the terms and conditions of work, providing access to promotion or training, and in dismissal.Footnote 16 However, the prohibition of age discrimination is subject to significant exceptions, which vary across jurisdictions.Footnote 17 In the federal ADA, for example, there are exceptions for domestic duties,Footnote 18 the inherent requirements of the role,Footnote 19 youth wages,Footnote 20 and direct compliance with other laws.Footnote 21 Narrower exceptions are included in the ACT Act.Footnote 22
The onus is typically on the claimant to show that a claim is made out. In Australia, it is exceptional for discrimination law to provide for a shifting burden of proof in cases of direct discrimination. For example, s 204 of the Anti-Discrimination Act 1991 (Qld), as it currently applies, requires a complainant to prove a contravention of the Act on the balance of probabilities.Footnote 23 However, the onus is generally on the respondent to establish any relevant exceptions or defences.Footnote 24
In practice, then, for a successful claim of direct discrimination, a claimant in the discrimination jurisdiction must typically establish that:
• their claim falls within the scope of the Act (for example, is made against an employer, and relates to employment);
• they have a protected characteristic or ground (here, age will be fairly self-evident, as we all have an age);
• they were treated, or proposed to be treated:
o unfavourably (in Victoria and the ACT); or
o less favourably than someone of a different age, in circumstances that are the same or are not materially different (in the federal jurisdiction); and
• the treatment or proposed treatment was ‘because’ or ‘because of’ age (what might be described as causation).
If a claim is successful, a claimant must also show any loss or damage in seeking specific remedies.
While establishing unfavourable treatment may be straightforward in some cases, it can be harder to establish less favourable treatment, as is required in the federal jurisdiction. Establishing ‘less favourable’ treatment requires the claimant to show that they were treated less favourably than a comparator who did not have the relevant protected characteristic ‘in circumstances that are the same or are not materially different’.Footnote 25 It can be complex for claimants to establish the appropriate real or hypothetical comparator, particularly where multiple comparators might be chosen.Footnote 26 Further, it can be difficult to establish how a hypothetical comparator would have been treated. The comparator requirement therefore makes proof of discrimination far more complex.Footnote 27
And yet, it is in the context of causation — ‘why’ was the person treated this way? — that proof becomes particularly problematic. In Purvis v New South Wales (‘Purvis’)Footnote 28 which related to the Disability Discrimination Act 1992 (Cth), Gleeson CJ emphasised that ‘because of’ relates to the ‘true basis of the decision’ (there, the decision of the principal to suspend and expel the student).Footnote 29 As McHugh and Kirby JJ (in dissent) expounded, ‘it is the reason why the discriminator acted that is relevant.Footnote 30 … [The correct test] focuses on the “real reason” for the alleged discriminator’s act.’Footnote 31
This test is not subjective;Footnote 32 however, it does focus on the mental state of the alleged discriminatorFootnote 33 to identify the ‘true basis’ for the act.Footnote 34 As Gummow, Hayne and Heydon JJ emphasised,
[T]he central question will always be — why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.Footnote 35
While this test is not subjective, it does hinge on the alleged discriminator’s mindset. This focus is likely to pose significant challenges for claimants in relation to proof; evidence of an alleged discriminator’s mindset is far more easily provided by the alleged discriminator themselves.
The approach in Purvis may be contrasted with the decision in the Victorian case of Austin Health v Tsikos Footnote 36 where the claimant argued that she had been discriminated against because of age and sex in setting her pay over many years. The case was described at first instance as ‘a complaint of systemic discrimination by a large organisation, and could not be reduced to a few isolated interactions with specific individuals.’Footnote 37 In this context, causation could not be determined by focusing on what ‘actuated’ the managers’ responses.Footnote 38 Rather, the Supreme Court considered other evidence, including expert evidence of gender bias in the workplace, and the failure of the respondent to call the latest manager to provide evidence.Footnote 39 This evidence, taken together, showed sex was a substantial reason for the pay disparity.Footnote 40 In the Court of Appeal, the use of the word ‘actuated’ in this context was described as ‘unhelpful’ and ‘best avoided’Footnote 41 as it was ‘apt to mislead’.Footnote 42 However, the judge’s approach to the question of causation was otherwise upheld, reflecting a far more flexible and purposive approach to the question of causation than that in Purvis.
In federal discrimination law, too, the rules of evidence apply to the hearing of discrimination claims in the Federal Court of Australia and the Federal Circuit and Family Court of Australia.Footnote 43 However, in most state and territory tribunals, the rules of evidence do not apply,Footnote 44 which again, will impact upon the question of proof.
The Briginshaw v Briginshaw (‘Briginshaw’) ‘standard of evidence’Footnote 45 may also increase the evidentiary hurdle facing claimants. Following Briginshaw, a successful claim of discrimination may be seen as having ‘grave consequences’ for respondents, meaning courts and tribunals may require evidence of high probative value to prove a claim.Footnote 46 Briginshaw does not create a third standard of proof, but requires a decision-maker to ‘proceed with caution at arriving at a state of satisfaction because of the seriousness of the allegations made in a discrimination case’.Footnote 47 That said, the Full Federal Court in Qantas Airways Ltd v Gama raised concerns about the application of Briginshaw, noting that it can lead courts into error, and not all cases will warrant the application of the Briginshaw principle.Footnote 48 The Queensland Human Rights Commission has therefore concluded that courts are applying this principle in a ‘measured way’ and ‘[a]s this issue is mostly settled, no legislative change is required.’Footnote 49
Australian courts also appear reluctant to infer discrimination without sound evidence: in Department of Health v Arumugam,Footnote 50 for example, Fullagar J held that, in the absence of direct evidence of discrimination:
If all that is proved, by inference or otherwise, in the absence of explanation, is less than all the elements of proof required for the complaint to succeed, neither a total absence of explanation nor a non-acceptance of an explanation can by itself provide an element of proof required … The fact that the occurrence of racial discrimination may often be difficult to prove cannot justify ‘convicting’ on something less than proof.Footnote 51
As Allen concludes, then, discrimination claimants in Australia face ‘an arduous task’ in establishing their claim if they proceed to hearing.Footnote 52
III. The problem of proof
Overall, then, considering the statutory framework, and the way it has been applied by the courts, proof appears likely to be a significant problem in federal discrimination law, particularly in relation to the question of causation. However, relying only on doctrinal analysis of reported age discrimination cases is likely to prove misleading, as most experiences of age discrimination are not pursued in the courts. Most experiences of age discrimination are never pursued or reported, and many claims are conciliated or abandoned.Footnote 53 As a result, there are few age discrimination cases to support traditional doctrinal analysis.Footnote 54 To complement this limited case law, this section draws on a mixed methods empirical research project on the enforcement of age discrimination law. The findings of this research help to contextualise the ‘problem’ of proof and how it is being exacerbated by the changing nature of discrimination and information asymmetries at work.
A Method
This mixed methods empirical study synthesises qualitative and quantitative data relating to the enforcement of age discrimination law. In particular, the study integrates:
• comparative legal doctrinal analysis of discrimination laws in Australia and the UK;
• semi-structured qualitative expert interviews;
• qualitative and quantitative content analysis of 1208 UK Employment Tribunal (‘ET’) age discrimination decisions published between February 2017 and 17 April 2019, and 108 Australian age discrimination cases published to 31 December 2017;
• statistical analysis of data from public surveys, statutory agencies, and community legal centres; and
• a survey of 76 legal practitioners and advocates in the UK and Australia working on age discrimination matters.
In particular, Parts III and IV of this article draw on the results of the expert interviews and the survey. Semi-structured qualitative interviews were conducted with 101 respondents from across the UK nations and Australian states and territories. Respondents included representatives from equality bodies, legal practice, age lobby groups, government, and unions. Interviews were conducted in July 2015 (the pilot stage) and between March 2018 and September 2020. Most interviews were conducted in person, though phone and Zoom interviews were conducted during the COVID-19 pandemic. Interviews were recorded and transcribed. Content analysis was used to categorize key patterns in the data.Footnote 55 Transcripts were coded inductively, drawing on themes from the literature and from the transcripts.Footnote 56 Coding was undertaken using NVivo qualitative data analysis software.
B. Empirical findings: the problem of proof
At a general level, issues of proof are intertwined with the nature of age discrimination, which tends to be subtle and increasingly less overt.Footnote 57 Indeed, modern forms of discrimination are increasingly more subtle and less overt.Footnote 58 Sturm sees this as inherent to ‘second generation’ discrimination, which is more subtle than ‘first generation’ discrimination, and grounded in unequal structures, systems and processes.Footnote 59 While discrimination is often subtle and insidious,Footnote 60 individuals are more likely to both identify discrimination and take action when the discrimination they experience is overt.Footnote 61 Thus, the nature of ‘second generation’ discrimination may make the evolution of disputes, via a process of ‘naming, blaming and claiming’,Footnote 62 problematic.
Even if individuals have a sense that they may have been discriminated against, it is difficult to know or identify the subjective reasons that might drive an employer’s decision-making. Behaviour and events, and subtle discrimination,Footnote 63 can be ambiguous. It is often difficult to identify or ‘attribute’ why the behaviour has occurred:Footnote 64
[I]t could be my accommodation status, but it might be because I’m female or it might be because I’m a white female person of X age. … how am I supposed to narrow down what the thinking was on the other side of the table?Footnote 65
And yet, as mapped in Part II, why the behaviour occurred is critical to establishing causation in discrimination law. Most jurisdictions require discrimination to occur because of,Footnote 66 on the grounds of,Footnote 67 or ‘on the basis of’,Footnote 68 a protected ground (here, age). However, age does not need to be the only, sole, or dominant reason,Footnote 69 though in some jurisdictions it must be ‘a substantial reason’.Footnote 70 In the ACT, too, the statute is explicitly required to be interpreted in a way that is beneficial to those with protected attributes.Footnote 71 Regardless, it is necessary to prove that the protected ground or characteristic was a reason for the treatment.
Difficulties of proof are further compounded by the fundamental information asymmetries between claimants (employees) and respondents (employers): respondents typically hold ‘all the power, all the information rests with them’,Footnote 72 yet it is for claimants to establish the claim or (in the UK) a prima facie case of age discrimination. Workers are unlikely to have access to information, documents and records that might help to prove their case. Instead, respondents hold, for example, all information about why a candidate is not provided a job offer, not promoted, or selected for redundancy.Footnote 73 While court and tribunal procedures like discovery might help to address these information disparities, it is difficult for a claimant to know whether it is even worth pursuing a claim to that stage.
Information asymmetries are likely to become worse over time, as employers increasingly turn to digital technologies and algorithms to ‘screen’ job applicants and manage staff.Footnote 74 Algorithms that are trained using biased information will, inevitably, replicate that bias in their operation.Footnote 75 Further, there is a fundamental lack of transparency in the algorithms that are used at work, and the data that is used to train the algorithms.Footnote 76 This makes algorithmic discrimination nearly impossible to challenge as an individual:Footnote 77
the discrimination is invisible, and it’s not something that’s easily challenged. People are having enough trouble challenging things that are quite direct discrimination; they’re certainly not going to know how the automation process works in the background of HR, of a company they’ve never worked for.Footnote 78
Thus, issues of proof are likely to increase in the future. Technology and algorithmic discrimination pose new challenges to discrimination law, which existing legal frameworks are ill-designed to accommodate.Footnote 79
IV. Proof and individual claiming
The question, then, is the extent to which difficulties of proof and a lack of evidence are inhibiting individual enforcement of age discrimination law. This is a particularly critical question for jurisdictions like Australia that predominantly rely on individual claims to address systemic and structural inequalities.Footnote 80 Overall, this empirical study indicates that issues of proof are severely inhibiting the individual enforcement of age discrimination law.
In this study, proof, and a lack of proof, was a recurring issue in the case sample, expert interviews and advocate survey. While proof is an issue in all discrimination claims, it is particularly acute in relation to age discrimination, especially in claims relating to recruitment.Footnote 81
While overt age discrimination is rare, these are the only cases that tend to be successfully pursued:Footnote 82 proving a case otherwise is ‘very, very difficult’;Footnote 83 ‘from a legal point of view, the less subtle anything is, the easier it is to enforce because you can see it and identify it.’Footnote 84 As one practitioner noted, ‘it’s really rare to find a case with good evidence. … I think I see far more age discrimination than I do bring age discrimination claims.’Footnote 85 Indeed, some respondents viewed age discrimination as the most difficult form of discrimination to proveFootnote 86 as it is typically hidden and rarely backed up by tangible evidence.Footnote 87 Even if age is clearly a factor in an employee’s mistreatment, that cannot be included in a claim without evidence ‘to back it up’.Footnote 88
In cases where evidence is ‘nebulous’, success largely rests on having a persuasive and articulate claimant, who can express their treatment in a way that is meaningful to a court or tribunal.Footnote 89 In these ‘he said, she said’ cases, the outcome will largely turn on credibility.Footnote 90 Those who are ‘better educated, more articulate claimants are more likely to fare better’Footnote 91 in giving evidence in the hostile environment of a court or tribunal. Issues of credibility can also arise if the claimant has problems with their memory.Footnote 92 This is consistent with Patrice Rosenthal and Alexandra Budjanovcanin’s study of UK ET sexual harassment decisions: in that study, claimant credibility was key to a claim’s success,Footnote 93 and ‘credibility’ was shaped by the claimant’s occupation, their initial reaction to the harassment, the way they left the organisation and other breaches of employment rights.Footnote 94
While the ‘credibility’ of a claimant is therefore critical, those who experience age discrimination may be poor witnesses, as they often do not even realise they are experiencing age discrimination themselves.Footnote 95 Internalised age norms and expectations may mean people do not understand their treatment to be discriminatory or have lower expectations as to how they should be treated.Footnote 96 Even where a claimant believes evidence to exist, further investigation often reveals that documentation does not exist, or that colleagues who might have witnessed behaviour are unwilling to go on the record in support of a claim;Footnote 97 it is often hard to corroborate a claim of age discrimination.Footnote 98
These hurdles all operate to inhibit claiming.Footnote 99 Understandably, then, age discrimination complaints are remarkably rare, and do not reflect the prevalence of age discrimination reported in workforce surveys.Footnote 100 Expert respondents in this study therefore saw proof (and an absence of proof) as a major barrier to claiming;Footnote 101 proof was mentioned in 38 of the expert interviews. In many cases, it is impossible to establish age discrimination, even if the claimant knows they have been discriminated against.Footnote 102 As respondents described:
[The] allegation will be [about] … what’s not there, rather than what’s there. So we get an allegation of age discrimination and it’ll go … ‘I’m 68, I applied for the job, I’ve been in this business for 40 years … on any objective view I’m super qualified; what else could it be but my age?’ And [the courts have] previously held that the ‘what else could it be’ argument is not sufficient. There has to be actually some evidence of … something, an inference that can be drawn or whatever. … simply … declaring ‘what else could it be’ will not cut it.Footnote 103
It’s those hidden [cases] where people don’t come forward or they have very little evidence. … there’s no tangible evidence. And that’s I think why a lot of people don’t [seek] conciliation because … many of the age discrimination complaints would get knocked out in the first round. Because when people ask ‘what have you got apart from this gut feeling that he’s been discriminated against?’ … well, you know, there’s no point in going forward. Particularly when we’ve asked the respondent and they’re like ‘Absolutely no way. Here’s all the reasons that they weren’t as good as somebody else.’Footnote 104
Experts therefore saw a lack of evidence as one of the main reasons why age discrimination law was not being enforced.Footnote 105 This was exacerbated by the onus of proof being on the claimant in most Australian jurisdictions.Footnote 106 For a claim to succeed, evidence of overt discrimination was seen as critical.Footnote 107 Without ‘smoking gun’ evidence, a claim was seen as unlikely to succeed, especially in a court or tribunal.Footnote 108 Thus, claimants were often deterred from claiming due to a lack of proof, or the difficulty of proving their claim.Footnote 109
In the advocate survey, practitioners and union officials were asked to assess the impact of various barriers on workers’ decisions not to pursue an age discrimination claim. One of the most influential factors in deterring claiming, according to these respondents, related to difficulties of proof: 84% of advocate respondents (28 of 33) saw difficulties in proving age discrimination as fairly influential (7 of 33), very influential (15 of 33) or determinative (6 of 33) in their clients choosing not to pursue potential age discrimination matters. Only one respondent said that difficulties of proof were not at all influential in their clients’ decisions not to pursue a claim.
V. Proof and the legal framework: comparative approaches to shifting the burden of proof
When expert respondents in this study were asked about the key reforms that could be made to age discrimination laws to improve their enforcement or effectiveness, multiple respondents independently identified the need to shift the burden of proof in Australian discrimination law,Footnote 110 as in the UK and under the FWA. For some respondents, this was seen as being potentially ‘incredibly beneficial’Footnote 111 to claimants.
Calls for a shifting burden of proof are also backed by multiple reviews of discrimination law in Australia. While the AHRC’s 2016 report Willing to Work: National Inquiry into Employment Discrimination Against Older Australians and Australians with Disability did not make any recommendation regarding the burden of proof,Footnote 112 it did suggest that future reviews of discrimination law give consideration to proof.Footnote 113 In 2021, the AHRC’s Free & Equal: A Reform Agenda for Federal Discrimination Laws recommended that a shifting evidentiary burden be introduced in federal direct discrimination laws, with the burden shifting once an applicant has established a prima facie case of discrimination, similar to the UK approach.Footnote 114
Similarly, the Queensland Human Rights Commission has recommended adopting what it calls a ‘shared burden of proof’,Footnote 115 modelled on s 136 of the Equality Act 2010 (UK) (‘EqA’), and informed by Igen Ltd v Wong Footnote 116 (discussed below). Following the Commission’s report, the Respect at Work and Other Matters Amendment Act 2024 (Qld) s 47A repealed and replaced ss 204–206 of the Anti-Discrimination Act 1991 (Qld), effective 1 December 2024, to create a new shifting burden of proof. Section 204 now reads (in part):
(1) In a complaint proceeding, if there are facts from which it could be decided, in the absence of any other explanation, that the respondent contravened the provision of the Act the subject of the alleged contravention, the respondent is taken to have contravened the provision.
(2) Subsection (1) does not apply if the respondent proves, on the balance of probabilities, that the respondent did not contravene the provision.
…
This is closely modelled on s 136 of the EqA. However, the impact of this change has been delayed by s 37 of the Crime and Corruption (Restoring Reporting Powers) and Other Legislation Amendment Act 2025 (Qld), which inserted a new s 285AA into the Anti-Discrimination Act 1991 (Qld) and reverted to the old burden of proof provisions until a date fixed by proclamation.
The WA Law Reform Commission has also recommended that, for direct discrimination claims, the Equal Opportunity Act 1984 (WA) be amended to ‘impose an evidentiary burden on a complainant to establish a prima facie case of discrimination. Once this evidentiary burden has been established, a persuasive burden should be imposed on the respondent to establish that their conduct did not constitute unlawful discrimination.’Footnote 117
Shifting the burden of proof is also backed by normative arguments: a shifting burden of proof shifts the weight of enforcement, in part, off a claimant, instead requiring respondents to produce information and evidence that might be in their possession. This partial transfer of the burden of enforcement is seen as appropriate, given ‘respondents need to do a lot more … when they come to defending a claim of discrimination. All the power, all the information rests with them.’Footnote 118
These reviews, recommendations and normative arguments make consideration of proof, and alternative models of proof, particularly timely. The question, then, is how a shifting burden of proof might operate in practice, and whether it would address the fundamental difficulties of proof inherent in ‘second generation’ discrimination cases. These questions can be considered by examining proof requirements in the EqA, the FWA and in the ACT. In the sections that follow, then, this article examines how such a shifting burden might work, drawing on comparative experiences in the UK, under the FWA and in the ACT, and how it might advance the existing discrimination law statutory framework and address the problem of proof.
Of course, even with a shifting burden of proof, some cases will not meet the burden of proof requirements (see below).Footnote 119 Further, most discrimination claims in Australia are resolved via confidential conciliation;Footnote 120 in conciliation, proof can be treated in a more flexible wayFootnote 121 and there is arguably no need to adhere to standards of proof or evidence.Footnote 122 That said, issues of proof become more critical once a complaint progresses to a tribunal or court.Footnote 123
Thus, while a lack of proof may not prevent a claim from being brought to a statutory equality agency or being conciliated, it will make claimants think twice about bringing a claim to a court or tribunal, even with a low risk of costs being awarded in most state and territory jurisdictions.Footnote 124 A lack of proof may also deter claiming (as discussed in Part IV), particularly for those unfamiliar with how conciliation works in practice.
It is worth noting, too, that some expert respondents in this study felt that difficulties in proving discrimination could be overcome, in some cases, by pursuing an unfair dismissal complaint instead;Footnote 125 stronger employment protection laws could overcome difficulties of proof under discrimination law.Footnote 126 However, this is not an argument against reforming discrimination law to address problems of proof: there are many cases beyond the scope of employment protection and unfair dismissal laws, such as those relating to independent contractors, casual and zero-hours workers, those who have not fulfilled the service requirements to make a claim for unfair dismissal, and cases relating to areas other than dismissal. While unfair dismissal possibly offers a more straightforward route to claiming, it is ill-equipped for dealing with circumstances where an employment relationship remains in place. There is therefore a need to re-consider proof in discrimination cases, and how difficulties of proof might be overcome, including through a shifting burden of proof.
A. UK: The EqA
Historically, the common law allowed, but did not require, a court or tribunal to infer that discrimination had occurred where the claimant could establish a prima facie case, and the respondent offered no explanation for the treatment.Footnote 127 This was not seen as ‘shifting’ the burden of proof: as opined in King v Great Britain-China Centre,
It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts. They should then reach a conclusion on the balance of probabilities, bearing in mind both the difficulties which face a person who complains of unlawful discrimination and the fact that it is for the complainant to prove his or her case.Footnote 128
Further, while it was open to a court or tribunal to make such an inference, saying that they ‘should’ do so ‘put the matter too high’.Footnote 129
These decisions on the use of inference were grounded in and supported by s 65 of the Race Relations Act 1976 (UK) (the ‘1976 Act’), which made provision for a questionnaire procedure. Section 65(2) then provided:
Where the person aggrieved questions the respondent (whether in accordance with an order under subsection (1) or not)—
…
(b) if it appears to the court or tribunal that the respondent deliberately, and without reasonable excuse, omitted to reply within a reasonable period or that his reply is evasive or equivocal, the court or tribunal may draw any inference from that fact that it considers it just and equitable to draw, including an inference that he committed an unlawful act.Footnote 130
Thus, the drawing of inferences was evidently encouraged by the relevant statute, where the respondent failed to offer an explanation for the treatment. There is no similar provision or questionnaire procedure in Australian jurisdictions, perhaps explaining why case law has diverged on this point between the UK and Australia (see below). That said, inferences that may be made include — but, implicitly, are not necessarily limited to — those in accordance with s 65(2)(b) of the 1976 Act.Footnote 131
A shifting burden of proof was effected by Directive 97/80/EC of the Council of the European Union of 15 December 1997 on the Burden of Proof in Cases of Discrimination Based on Sex (the ‘Burden of Proof Directive’).Footnote 132 The preamble to the Burden of Proof Directive explicitly noted the difficulties of proving a claim of discrimination, and that reform was necessary to ensure laws in this area were effective:
plaintiffs could be deprived of any effective means of enforcing the principle of equal treatment before the national courts if the effect of introducing evidence of an apparent discrimination were not to impose upon the respondent the burden of proving that his practice is not in fact discriminatory[.]Footnote 133
Under art 4(1) of the Burden of Proof Directive,
Member States shall take such measures as are necessary, in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.Footnote 134
This did not prevent Member States from introducing rules more favourable to claimants.Footnote 135 The Burden of Proof Directive was later extended to apply to the UK,Footnote 136 and integrated into specific discrimination directives. The burden of proof for age discrimination proceedings is specified in art 10 of Directive 2000/78/EC of the Council of the European Union of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (the ‘Framework Directive’),Footnote 137 in identical terms to that under art 4(1) of the Burden of Proof Directive.
In Igen,Footnote 138 decided under the Sex Discrimination Act 1975 (UK) and the Race Relations Act 1976 (UK), the UK Court of Appeal interpreted the burden of proof provisions as entailing two ‘stages’:
The first stage requires the complainant to prove facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant. The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld. …Footnote 139
It is for the applicant complaining of discrimination only to make out his or her case to satisfy the first stage requirements. If the second stage is reached, and the respondent’s explanation is inadequate, it will be not merely legitimate but also necessary for the employment tribunal to conclude that the complaint should be upheld. The statutory amendments shift the evidential burden of proof to the respondent if the complainant proves what he or she is required to prove at the first stage.Footnote 140
While proof involves two stages, courts and tribunals do not necessarily need to divide a hearing into two parts: more likely, they will hear all the evidence before deciding if the first stage is satisfied.Footnote 141 Thus, burden of proof provisions should not be over-complicated.Footnote 142
Section 136 of the EqA now provides:
(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision.Footnote 143
Early cases held that s 136 meant the claimant did not need to prove anything, that is, the claimant had no burden of proof,Footnote 144 given the shift in wording from requiring that ‘the complainant proves facts’ (under s 54A(2)) of the Race Relations Act 1976 (UK)) to the more neutral ‘if there are facts’ in the EqA.Footnote 145 However, in Ayodele v Citylink Ltd, Footnote 146 the Court of Appeal confirmed that a claimant is still required to establish a prima facie case for the burden of proof to shift under s 136.Footnote 147 For the Court of Appeal, s 136 was better seen as an example of ‘no more than a legislative “tidying up” exercise. It was not intended to change the law in substance’.Footnote 148 This was affirmed in the Supreme Court case of Royal Mail Group Ltd v Efobi (‘Efobi’),Footnote 149 where the Court held that the change in wording in the EqA made no substantive change to the law;Footnote 150 the claimant must still establish a prima facie case.Footnote 151 This requirement was considered necessary ‘to strike a fair balance’ between claimants and respondents: ‘it would be unduly onerous to require an employer to disprove a mere assertion of discrimination’.Footnote 152
Efobi also clearly articulates the need for a shifting burden of proof to address information asymmetries between claimants and respondents.Footnote 153 As Lord Leggatt outlines (with whom Lord Hodge, Lord Briggs, Lady Arden and Lord Hamblen agreed):
the relevant information about the reasons for treating the claimant less favourably than a comparator is, in its nature, in the employer’s hands. A claimant can seek to draw inferences from outward conduct but cannot give any direct evidence about the employer’s subjective motivation[.]Footnote 154
In Northern Ireland (‘NI’), the Employment Equality (Age) Regulations (Northern Ireland) 2006 contain the historical formulation of the burden of proof in reg 42(2):
Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent—
(a) has committed against the complainant an act to which regulation 41 (jurisdiction of industrial tribunals) applies; or
(b) is by virtue of regulation 26 (liability of employers and principals) or regulation 27 (aiding unlawful acts) to be treated as having committed against the complainant such an act,
the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act.Footnote 155
B. The shifting burden in practice: Employment Tribunal age discrimination decisions
What practical impact does the shifting burden of proof have on age discrimination law in the UK? More specifically, does this shift address the problems of proof seen in Australia? Drawing on qualitative and quantitative content analysis of 1208 UK ET age discrimination decisions, published between February 2017 and 17 April 2019,Footnote 156 it is possible to offer some empirical insights into the practical impacts of the shifting burden of proof in the context of age discrimination law.
Despite the legislative shifting of the burden of proof, a lack of evidence was a recurring issue in the UK case sample, being raised as an (often determinative) issue in 87 cases.Footnote 157 In the case sample, a lack of evidence proved to be an insurmountable issue in a number of claims, to the point where a prima facie case could not be established, and the burden of proof did not shift. The burden of proof was explicitly held to not shift to the respondent in 28 cases; other cases did not even progress this far due to a complete lack of evidence.Footnote 158 In some cases, the claimant’s evidence was held to be unreliable; in others, the claim was merely speculative or an ‘assertion’ without evidential backing, or was not particularised or actively pursued. Where a lack of evidence did not hamper a claim, this was often because the respondent failed to produce relevant evidence.Footnote 159
That said, in some cases the burden of proof shifted, and this could be critical to the success of a case, especially where the claim related to recruitment. In James v Coedffranc Community Council,Footnote 160 for example, the claimant established facts from which the ET could conclude, in the absence of an adequate explanation, that the respondent had committed an act of age discrimination in recruitment. Evidence brought forward included comments relating to age made in a job interview by a Councillor; interview notes which noted the ages of only the two oldest job applicants, and which circled the age of the successful (younger) candidate; and that this Councillor’s lower marks for the claimant ‘was a game changer in the decision to appoint’ the younger candidate: the claimant had top marks from the other two interviewers.Footnote 161 The circling of the age of the successful, younger, candidate enabled the ET to ‘properly infer that the age of the claimant was a matter that [the Councillor] bore in mind when making her decision.’Footnote 162 The respondent could not discharge its burden of proof, and the ET could not conclude that the decision ‘had nothing to do with the claimant’s age’.Footnote 163 That said, the claimant’s case was also supported by other evidence, including written evidence of a job application form with space for a date of birth, and the claimant’s contemporaneous complaint to the respondent.
The shifting burden of proof was also instrumental in Amu v Department for Work and Pensions. Footnote 164 In this case, the claimant alleged discrimination and harassment on the basis of age and ethnicity when she was targeted, excluded and ridiculed by other trainees in her training group. There were facts from which the ET could infer that the claimant was treated less favourably than someone who did not share her age group would have been treated. Equally, there were facts from which the ET could infer that the claimant was treated less favourably than someone who did not share her race would have been treated.Footnote 165 The burden of proof therefore passed to the respondent, and was not discharged.Footnote 166
Where there is competing evidence from the claimant and respondent, it is a potentially high bar to succeed with a claim of age discrimination. This challenge is particularly acute in relation to recruitment, where the respondent likely holds the weight of evidence. In these sorts of cases, the shifting burden of proof can be a key factor in determining the outcome of a claim. For example, the shifting burden of proof was essential to the claim’s success in Khan v Roadrunners GB Ltd.Footnote 167 In that case, the claimant’s employment ended after a meeting with two of the respondent’s managers. One manager failed to give evidence.Footnote 168 The claimant and the other manager gave conflicting evidence of what occurred in the meeting: the claimant said he was dismissed; the manager said the claimant had ‘agreed mutually’ to retire.Footnote 169 The claimant’s evidence was preferred to that of the manager, including his recollection of the meeting:
It is simply not credible that the Claimant was summoned to a meeting without being given any information about the subject matter of that meeting in advance, and then simply agreed to retire immediately. He was not able to draw his State pension at the time and had been earning about £325 a week net. That income could not be replaced immediately.Footnote 170
The claimant also told a colleague that he had been fired after the meeting.Footnote 171 The respondent gave evidence that retirement was discussed at the meeting, which was sufficient to establish a prima facie case.Footnote 172 The respondent could not discharge its burden of proof, and the age discrimination claim succeeded.
Even with a shifting burden of proof, claimants potentially face onerous evidential requirements. In the successful NI case of Matier v Spring & Airbrake Ireland Ltd,Footnote 173 the claimant was allegedly discriminated against in recruitment at the respondent’s place of business. After speculatively attending the respondent’s premises to apply for employment, the claimant alleged he was told by someone in authority there was no point applying due to his age.Footnote 174 The claimant’s evidence was corroborated by his friend, who accompanied him to the respondent’s premises but did not actually enter the premises to witness the exchange, and who was told of the events immediately after the claimant exited the premises.Footnote 175 Further, there was written documentation created by the claimant’s job centre advisor after the claimant reported the incident to the Jobs and Benefits Office; and evidence from the respondent itself, which admitted to asking job seekers for their age.Footnote 176 The respondent failed to discharge its burden of proof, as it denied the claimant ever came to its premises.Footnote 177 Having succeeded in this claim, however, the claimant was only awarded damages for injury to feelings of GBP3000, a comparatively miserly amount given the effort required to prove a claim of this nature.
That said, too much (or unhelpful) evidence could undo a claimant’s case. In Angeli v The Orthopaedic Footwear Company Ltd,Footnote 178 the claimant covertly recorded a disciplinary meeting; the recording supported the respondent’s account of events. Without that recording, the claimant would have benefitted from the shifting burden of proof, and may well have succeeded.Footnote 179
The shifting burden of proof may therefore be critical in finely balanced cases; it is not a panacea, though, for issues of proof more generally. This conclusion is consistent with the findings from the qualitative expert interviews, where the shifting burden of proof was seen as having some, limited, impact on discrimination law by UK practitioners. While the shifting burden of proof rarely ‘has a decisive impact’,Footnote 180 as ‘most cases are not decided on the burden of proof’,Footnote 181 ‘it does have an impact on some cases’ with very particular fact scenarios.Footnote 182 The shifting burden of proof will therefore only assist a claimant in a ‘finely balanced’ case, and these cases are the exception: ‘By the time all the evidence comes out, normally a decision-maker has reached a view or is able to reach a view one way or the other.’Footnote 183 The shifting burden of proof, which is largely a European concept, does not fit well within the UK legal system, where parties are already required to disclose all relevant documents in proceedings.Footnote 184 Thus, with the way the courts have interpreted s 136, it has become ‘a much watered-down version of what the European law was actually seeking’.Footnote 185 A shifting burden of proof must therefore also be accompanied by sympathetic and purposive judicial interpretation; without this, much of the potential of these provisions may be lost.
C. Australia: The FWA
A similar experience has emerged in Australia under the FWA. Under s 361(1) of the FWA, for general protections cases:
If:
(a) in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
(b) taking that action for that reason or with that intent would constitute a contravention of this Part;
it is presumed, in proceedings arising from the application, that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
Following the High Court case of Board of Bendigo Regional Institute of Technical and Further Education v Barclay (‘Barclay’),Footnote 186 relating to industrial activity, the shifting burden of proof under s 361 can be discharged by an employer’s own evidence regarding the reason for their actions.Footnote 187 According to French CJ and Crennan J in Barclay, ‘direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains “why was the adverse action taken?”’Footnote 188 An employer’s professed reason for acting is likely to be accepted, even if the reason itself is irrational.
Anna Chapman, Kathleen Love and Beth Gaze contrast this narrow, ‘Barclay approach’Footnote 189 with a ‘broader approach’, where courts apply a ‘wider lens’ to ‘independently consider the extent to which the stated innocent reason of the employer, and sometimes more broadly the decision of the employer, is linked to the alleged prescribed ground’.Footnote 190 For the authors, these approaches are ‘two end points on a continuum or spectrum of judicial approaches to the reverse onus of proof and the causal link’.Footnote 191 Claimants are more likely to succeed where the broader approach is adopted,Footnote 192 yet the Barclay approach remains dominant.
Understandably, then, given this narrow interpretation, and enduring focus on the employer’s mindset, expert respondents in this study did not see the shifting burden of proof under the FWA as making a substantial difference in practice, given how it has been interpreted and applied. As one practitioner noted, ‘I think the general protections cases have made us all a bit of afraid of general protections’,Footnote 193 particularly due to the way Barclay considered the mind of the decision-maker.Footnote 194 Despite the shifting burden of proof, then, courts have remained very deferential to employers’ evidence;Footnote 195 the FWA’s reverse burden of proof is seen as a ‘façade’.Footnote 196 As a result, the impact of s 361(1) in practice has been limited, particularly given the other limitations of the federal court system for hearing discrimination and work disputes.Footnote 197 That said, the reverse burden of proof might be a useful tool in negotiations or conciliation.Footnote 198
Even with a reverse onus of proof, the evidence backing many claims is insufficient, in part because human behaviour itself is complex, and driven by multiple factors:Footnote 199
If you’re commencing a proceeding, you have to have a reasonable basis to make the claim. You can’t do it on the basis of suspicion even if you’ve got the benefit of a reverse onus … . That’s not grounds for a solicitor to sign an application to a court or a tribunal … it’s just not a sufficient basis to make the claim.Footnote 200
Overall, proof, or a lack of proof, was a recurring theme in many unsuccessful Australian age discrimination cases in the case sample, with a lack of evidence being raised in 32 of the 108 cases across discrimination and industrial law. This often related to the alleged detriment or adverse treatment, or to causation. However, in Carr v Blade Repairs Australia Pty Ltd (No 2),Footnote 201 decided under the Workplace Relations Act 1996 (Cth) (WRA) unfair dismissal legislation, a reverse burden of proof proved essential to the claimant’s success. Under the WRA s 664, Tracey J held that the ‘respondent bears the onus of proving that the termination was for a reason or reasons that do not include a proscribed reason’Footnote 202 such as age; the applicant did not have the burden of proof. Thus, while the employer denied the claimant’s evidence that he was told that the clients ‘“don’t want young blokes working on the wind farms anymore”,Footnote 203 and Tracey J could not decide between the conflicting accounts of the conversation, this meant the claimant was successful.Footnote 204
This stands in stark contrast to how such a claim might be decided under discrimination law, or under the current approach to the FWA. For example, in the South Australian case of Choong v Bridgestone Australia Ltd,Footnote 205 the claimant alleged he was told ‘Your age was the issue. When you reach age 65 you cannot work anymore’.Footnote 206 The employer denied saying this, or that the reason the claimant was not appointed to the boiler attendant’s position was due to age.Footnote 207 In this case, though, the Tribunal was able to distinguish between the evidence of the claimant and respondent, and preferred the respondent’s account of events.Footnote 208
Again, in North v City of Sydney Council,Footnote 209 the claimant’s argument that he was not interviewed for a position due to his age was unsuccessful; the Tribunal noted that:
[T]he onus is on the Applicant to satisfy the Tribunal on the balance of probability and having regard to the serious nature of the allegation, that the reason for the Respondent to have discriminated against the Applicant in choosing other applicants in preference to him, to be interviewed for the position was because he was older than the other applicants. In the face of the denial of such a reason by Mr Saunders and in the absence of any other supporting material for the claim by the Applicant, the Tribunal is not able to find that this claim of discrimination on the ground of age has been substantiated.Footnote 210
Clearly, then, there are finely balanced cases emerging in Australia, which could be swayed by a shifting burden of proof.
D. ACT: cases referred to ACAT
For the most part, Australian discrimination law does not provide for any shifting of the burden of proof. However, in the ACT, for cases referred to the ACT Civil and Administrative Tribunal (ACAT), there is a rebuttable presumption of discrimination under the Human Rights Commission Act 2005 (ACT) s 53CA (introduced by the Discrimination Amendment Act 2016 (ACT)). The presumption applies in the context of direct discrimination if the claimant can prove that the treatment or proposed treatment is unfavourable;Footnote 211 and ‘presents evidence that would enable ACAT to decide, in the absence of any other explanation’, that the treatment or proposed treatment is because of a protected attribute.Footnote 212 The presumption is then rebutted if the respondent establishes that the treatment is not because of a protected attribute.Footnote 213
Unlike the position under the EqA and FWA, this provision is only relevant to cases referred to ACAT; it does not apply to the bulk of claims and complaints, which will be resolved via conciliation.Footnote 214 This may simply reflect the flexible nature of conciliation; issues of proof are only strictly enlivened once a claim proceeds to tribunal. That said, given a reverse or shifting burden of proof might be a useful tool in negotiations or conciliation,Footnote 215 this appears to be a major omission from the ACT provisions.
When originally introduced, the ACT’s rebuttable presumption was clearly intended to make enforcement of discrimination law less onerous for claimants, recognising the information asymmetries between parties.Footnote 216 While framed as a ‘rebuttable presumption’, the Bill’s Explanatory Memorandum talks about the ‘threshold requirements for a prima facie case’, and that ‘the onus [then] shifts to the respondent’.Footnote 217 That said, the ‘rebuttable presumption’ in the ACT appears less generous than the reverse burden of proof articulated in the FWA: claimants in ACAT must still show that they experienced unfavourable treatment and produce evidence that would allow the Tribunal to conclude that the unfavourable treatment was because of a protected characteristic. This places a significant evidentiary burden on the claimant. It is also less generous than what was recommended by the ACT Law Reform Advisory Council (‘LRAC’).Footnote 218 The LRAC, in its report, summarised the legislative choices as follows:
A complainant is currently responsible for demonstrating that the respondent treated them unfavourably because of a protected attribute. It can, however, be difficult for the complainant to establish the reasons for the respondent’s conduct, because they cannot know what was in the mind of the respondent. One possible alternative is to require the complainant to show that they were treated unfavourably and then to require the respondent to show that the treatment was not for discriminatory reasons. This is the approach taken in the Commonwealth Fair Work Act.Footnote 219
A slightly different approach is to require the complainant to show that they were treated unfavourably and to provide evidence from which the court could decide that the respondent treated them unfavourably because of a protected attribute. The respondent would then be required to show that the treatment was not for discriminatory reasons. This approach was proposed in the Exposure Draft of the Commonwealth Human Rights and Anti-Discrimination Bill, and is the approach taken in the UK, Canada, US and European Union. …Footnote 220
In LRAC’s view, complainants should be required to demonstrate that they were treated unfavourably. The burden of proof should then shift to the respondent to demonstrate that the person was not treated unfavourably because of a protected attribute. This would address the current difficulty encountered by complainants in being required to demonstrate what was in the mind of the complainant at the time of the unfavourable treatment.Footnote 221
Thus, the LRAC recommended an approach similar to that under the FWA. What was ultimately adopted, though, was the more exacting approach of the UK. The Bill’s explanatory materials help to explain this choice. When originally introduced, the reverse burden of proof was described as ‘arguably limit[ing] the right to fair trial’ under s 21(1) of the Human Rights Act 2004 (ACT) (‘HRA’).Footnote 222 That provision says:
Everyone has the right to have criminal charges, and rights and obligations recognised by law, decided by a competent, independent and impartial court or tribunal after a fair and public hearing.
There is arguably nothing in a shifting burden of proof that would affect this right.Footnote 223 Despite this, it is possible that this concern for human rights led to a more limited provision than the ACT LRAC originally recommended. As noted in the Explanatory Statement,
The Bill adopts a middle ground approach to that recommended by LRAC (which more closely mirrors the Fair Work Act) by still requiring the complainant to show evidence to support an assertion that the discrimination occurred because of a protected attribute of the complainant.Footnote 224
This ‘limitation’ or ‘middle ground’ was seen as ‘reasonable and justifiable in a free and democratic society’,Footnote 225 in accordance with s 28 of the HRA. Thus, a conscious decision was made to adopt a weaker provision in the ACT, where claimants must still provide some evidence that treatment was on the basis of a protected characteristic, ostensibly to comply with the HRA. The irony, of course, is that equality is also a human right protected by the HRA.
In applying s 53CA, then, claimants must still articulate a coherent and clear case of discrimination: as described by Senior Member Hyman in Complainant 201931 v Australian Capital Territory (represented by Access Canberra),Footnote 226 s 53CA:
lays out the way in which the onus lies on the parties: the complainant, to succeed, must establish unfavourable treatment or disadvantage resulting from an imposed condition or requirement (depending on whether direct or indirect discrimination is asserted), and advance sufficient evidence that the treatment or disadvantage is caused by the protected attribute or attributes to persuade the Tribunal, in the absence of any other explanation. The respondent, to succeed, must advance evidence that rebuts any case the complainant has made by showing, where the complainant has established the rebuttable presumption that discrimination has occurred, that any unfavourable treatment or disadvantage had some other cause. The respondent’s obligation to rebut extends to, and not beyond, the case the complainant has made; the respondent has no obligation to rebut a case that was available to the complainant but not articulated.Footnote 227
As ACAT cases show, the weaker burden of proof provisions in the ACT have not necessarily achieved effective protection against discrimination. Claimants have repeatedly failed to present sufficient evidence to show that there was a discriminatory reason for their treatment; that is, that their treatment was ‘because of’ the protected ground. In Puri v Iconic Markets and Events Pty Ltd (Appeal),Footnote 228 for example, it was held that even with the rebuttable presumption, ‘there was insufficient evidence to enable the Appeal Tribunal to decide, in the absence of any other explanation, that the treatment was because of Mr Puri’s race’ (regardless, the respondent established to the Tribunal’s satisfaction that the treatment was not because of race).Footnote 229 In a series of cases, the claimant has failed to meet the evidentiary threshold to enliven the rebuttable presumption.Footnote 230
However, in Abraham v Thomas (Discrimination),Footnote 231 the claim for discrimination in work on the basis of immigration status was successful, and potentially assisted by the rebuttable presumption. The claimant argued that she was subjected to unfavourable treatment — namely, being threatened by the respondent that her 457 visa sponsorship would be withdrawn, and that she would have to leave Australia — if she did not work more hours than she was being paid to work, and did not participate in a ‘cash back’ scheme initiated by the respondent (where the claimant was required to pay $511.40 per fortnight to the employer to cover the tax the respondent had paid the ATO). The Tribunal found the claimant to be ‘honest, reliable and consistent’, and her evidence was corroborated by other witnesses and contemporaneous emails.Footnote 232 By contrast, the Tribunal ‘was not favourably impressed with the evidence given by the respondent.’Footnote 233 The Tribunal concluded, then, that:
the applicant is also entitled to the rebuttable presumption under section 53CA HRCA that the unfavourable treatment is deemed to have occurred because of discrimination. In making that finding I am satisfied that the applicant presented evidence that would enable me to decide, in the absence of any other explanation, that the unfavourable treatment occurred because of the applicant’s immigration status. I am also satisfied that the evidence presented by the respondent did not individually or collectively rebut the presumption.Footnote 234
Given the weight of the evidence in this case, and the credibility of the claimant as a witness, it appears likely that the claim would have been successful even without the rebuttable presumption.
Similarly, in Applicant DT 30 of 2021 v Respondent DT 30 of 2021 (Discrimination),Footnote 235 another successful claim, there was no need for the Tribunal to make use of s 53CA. In Complainant 202012 v Australian Capital Territory (as Represented by the Director-General, Community Services Directorate) (Discrimination),Footnote 236 a rebuttable presumption of discrimination was established,Footnote 237 and was not rebutted.Footnote 238 In this case, the respondent’s reasons for acting were explained in a statement of reasons provided by the relevant Delegate, which explicitly gave weight to the protected ground of irrelevant criminal record.Footnote 239 Again, this is fairly compelling evidence, and the claim would likely have succeeded without the assistance of s 53CA.
Overall, then, it appears unlikely that s 53CA is significantly shifting the status quo of the burden of proof in the ACT. As one respondent in this study noted,
[claimants] know that there’s issues around burden of proof, and even though the legislation says the burden is on the employer to prove that they didn’t discriminate, people know it’s their word against theirs, and that the employer can just come up with some sneaky language to get rid of it.Footnote 240
Thus, a shifting burden of proof (at least as it is framed in the ACT) is not necessarily enough to encourage individuals to pursue a complaint, or sufficient to address existing barriers to proving a claim of discrimination.
VI. Recommendations: beyond a shifting burden of proof
As this survey of Australian and UK age discrimination case law has illustrated, introducing a shifting burden of proof is not, in itself, enough to address the enduring limits of discrimination law. Statutory reform must be accompanied by purposive and sympathetic judicial approaches, which seek to give meaningful effect to these legislative provisions. Shifting the burden of proof might have unpredictable effects if courts are not sympathetic to discrimination claims. It means ‘the whole culture of the trial process would be shifted and it would actually turn the focus around to the respondent’, even creating sympathy for the respondent: ‘The poor respondent being put in this situation where they have to justify [their behaviour]’.Footnote 241 Further, even with a shifting burden of proof, a claimant still has to ‘bring your case, if not prove your case. You’ve still got to establish a basic case.’Footnote 242 This may explain limited levels of success under the FWA and EqA, even with a shifting burden of proof.Footnote 243
Thus, while a shifting burden of proof is an important reform priority for Australian discrimination law, is it not a panacea for the problem of proof. Measures to address information asymmetries and promote accountability for organisational practices are arguably just as important, if not more so, than a shifting burden of proof. Four strategies might advance this end.
First, an inability to prove discrimination in particular cases might be overcome through organisational data collection, to identify systemic patterns and trends.Footnote 244 For example, while identifying and proving age-based discrimination in recruitment can be difficult for individuals, at an organisational level, workforce data could demonstrate age-based preferences or ‘unwritten policies’ against employing older workers (as, for example, in Virgin Blue Airlines Pty Ltd v Hopper).Footnote 245 Statistical evidence of the composition of the workforce, and of the outcomes of recruitment processes, might be an important form of evidence to counter employers’ arguments that processes are age-neutral.Footnote 246 However, strong evidence would be required to prove systemic discrimination of this nature,Footnote 247 and any investigation of this nature would be difficult.Footnote 248 That said, employers are already being required to reveal some information of this nature, at least in the context of gender.Footnote 249
To some extent, too, this reveals the limitations of discrimination law as a tool for addressing systemic discrimination or poor treatment related to a protected ground, particularly when age often overlaps with experience and vulnerability. Young people are more likely than those of other ages to be underpaid or mistreated at work, but it can be difficult to prove they have been treated unfavourably on the basis of age.Footnote 250
Second, then, a proactive statutory equality agency, responsible for conducting conciliation, could help to address information asymmetries between the parties through requesting disclosure by the parties. As one agency noted,
when we get, for instance, complaints around recruitment what we will generally do is seek a response, and as part of the response information we’ll seek de-identified information about other successful candidates for interview and their age, and de-identified information as to the age of the successful candidate. … in some situations when a person says, you know, they’re 45 and they think that they didn’t get the job because of their age, and we get provided with information that supports the person who was a successful candidate was 52, it would tend not to support that their age was a factor.Footnote 251
The difficulty with this approach, of course, is that a woman at age 45 could be held to quite different standards than a man at age 52, reflecting ideas of gendered ageism. This means, then, that data and information obtained must be considered via an intersectional lens; age data alone is not enough to disprove unequal treatment. Further, statutory equality agencies must focus on better communicating with the public regarding the flexibility of conciliation, which can avoid problems of proof. This is essential if individuals are to be encouraged to make use of legal mechanisms, and not be deterred by issues of proof and evidence.
Third, information asymmetries could be addressed through a questionnaire procedure, like that previously in place in the UK.Footnote 252 A questionnaire procedure can be an important tool for improving workplace communication and transparency,Footnote 253 enabling claimants to ask questions of their employer at an early stage in the dispute process, before commencing tribunal or court proceedings, to see if they have a claim. Obtaining information through the questionnaire procedure potentially ‘makes a huge difference’ to claimants and their representatives:Footnote 254 otherwise, all the information and power remains with the respondent.Footnote 255 Requiring more transparency may also encourage claims to resolve earlier.Footnote 256 The questionnaire procedure was abolished in the UK as it was seen as too demanding for employers,Footnote 257 with claimants often asking too many questions. However, this could be mitigated by providing standard (and limited) questionnaire templates to assist claimants.Footnote 258 Further, it is arguably more onerous for employers to have to respond to a tribunal claim than to answer a claimant’s questions at an early stage.
Fourth, and finally, positive equality duties, particularly when focused on transparency and organisational accountability, could be an important complement to a shifting burden of proof. Positive equality duties are an important tool for shifting from a reactive, individually-focused model of equality law, to a focus on proactive, systemic ways to advance equality.Footnote 259 They are a critical means of addressing ‘second generation’ discrimination, that does not hinge on individual enforcement. In other work, I have previously mapped the way positive duties might support organisational accountability through targeted transparency,Footnote 260 by cultivating an action cycle of engagement between employers, workers, unions, the community and other stakeholders. Overcoming problems of proof requires better organisational accountability and transparency. Positive duties can be a critical tool in removing the veil that shrouds inequality at work.Footnote 261
VII. Conclusion
The problem of proof is not going away. Indeed, as employers increasing embrace new technological and algorithmic tools to help manage their workforce, information asymmetries are only likely to increase. While discrimination laws in Australia should adopt a shifting burden of proof, there is also a need to adopt strategic and holistic strategies that reduce reliance on individual enforcement to address inequality and discrimination, and address the growing information asymmetries between employers and workers. These measures are likely to be critical for addressing the growing impact of technology and algorithmic management on the workplace. Creating a more equal and inclusive future of work requires addressing information inequalities as well as workplace inequalities.
Funding
This research was funded by the Australian Government through the Australian Research Council’s Discovery Projects funding scheme (project DE170100228). The views expressed herein are those of the author and are not necessarily those of the Australian Government or Australian Research Council.
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