Burden of proof

Who has to prove what — and to what standard — when a dispute reaches a tribunal, court or ombudsman. The answer often decides a case before a word of live evidence is heard.

What standard of proof applies in an employment tribunal?

Employment tribunals, like other civil courts, decide disputed facts on the balance of probabilities. The tribunal asks whether something is more likely than not to have happened, so anything just past a 50 percent likelihood is enough. This is a lower standard than the criminal one of beyond reasonable doubt, which is why a claim can succeed even where some doubt about exactly what happened remains.

Who has the burden of proof in a discrimination claim?

It starts with the claimant and can move. First, the claimant must set out facts from which the tribunal could conclude, in the absence of any other explanation, that discrimination took place. If those facts are established, the burden shifts to the employer to prove that the treatment was not for a discriminatory reason. This shifting burden is set out in section 136 of the Equality Act 2010.

Who has the burden of proof in an unfair dismissal claim?

The employer must first show what the reason for the dismissal was and that it was one of the five potentially fair reasons in the Employment Rights Act 1996 — conduct, capability, redundancy, breach of a statutory restriction, or some other substantial reason. Once that is shown, the question of whether the dismissal was fair carries no burden on either side; the tribunal decides it neutrally on all the evidence.

What happens if the evidence is evenly balanced?

If the tribunal genuinely cannot decide which account is more likely, the burden of proof breaks the tie. The party who needed to prove the point — and has not — loses on that point. This is why identifying who carries the burden matters: it settles the outcome whenever the evidence is too close to call.

Does the burden of proof work the same way in a small claims or scam refund case?

The standard is the same — the balance of probabilities — across the small claims court and ombudsman complaints. Who carries the burden differs by claim. In a small claims case the claimant generally proves their case. In an authorised push payment fraud complaint, the bank must prove the narrow gross negligence exception if it wants to refuse a refund; the customer does not have to prove they were not negligent.

How do I meet the burden of proof?

Contemporaneous documents carry the most weight — emails, messages, notes and records made at the time, before any dispute arose. Build a clear, dated timeline, identify witnesses who saw what happened, and keep your account consistent and measured. Where a document that should exist is not produced by the other side, a tribunal can sometimes draw an inference about why.

Start My Claim — UK Legal Case Builder

Build and run your own employment tribunal, small claims, scam refund or renters' rights case with Start My Claim.

Glossary · All tracks

Last reviewed: May 2026

Applies across all four tracks

is the duty to prove a disputed fact. In civil cases — employment tribunals, the small claims court, ombudsman complaints — facts are decided on the

balance of probabilities

, meaning a fact is treated as true if it is more likely than not. Who carries that burden, and when it shifts, depends on the type of claim.

Where this comes from

Equality Act 2010, s.136

— sets out the shifting burden of proof in discrimination claims.

Employment Rights Act 1996, s.98

— the employer must show the reason for a dismissal; the question of fairness then carries no burden.

Madarassy v Nomura International plc [2007] EWCA Civ 33

— a difference in characteristic plus a difference in treatment is not, on its own, enough to shift the burden.

Royal Mail Group Ltd v Efobi [2021] UKSC 33

— the Supreme Court on how the first stage of s.136 works in practice.

gov.uk — Employment tribunals

What burden of proof actually means

Every contested case turns on facts the two sides disagree about. The burden of proof is the rule that decides whose job it is to prove a particular fact. The standard of proof is the separate rule that decides how convincingly it has to be proved. They are different ideas, and both shape how a case is decided.

Take the standard first. Criminal courts use a demanding standard — proof beyond reasonable doubt — because a conviction can take away a person's liberty. Employment tribunals, the small claims court and ombudsman schemes are not criminal forums. They use the civil standard: the

. A fact is treated as proved if the tribunal thinks it is more likely than not — anything past the halfway point. You do not have to remove all doubt. You have to tip the scale.

The burden is the question of who has to do the tipping. As a starting point it rests on the person bringing the claim. If you say your employer dismissed you, or that a trader never finished the work, it is for you to produce the evidence. But the burden is not fixed in one place for the whole case. It attaches to particular issues, and for some kinds of claim the law deliberately moves it.

Discrimination is the clearest example. Discrimination is rarely admitted and rarely written down, so a rule that left the whole burden on the claimant would make most claims impossible to prove. Section 136 of the Equality Act 2010 answers this with a two-stage approach. At the first stage the claimant must establish facts from which the tribunal

conclude, in the absence of any other explanation, that discrimination took place. If they do, the burden shifts: the employer must then prove that the treatment had nothing to do with the protected characteristic. The Court of Appeal in

Madarassy v Nomura International plc

made clear that the first stage needs more than a difference in characteristic plus a difference in treatment — there must be something more pointing towards discrimination — and the Supreme Court returned to the wording of section 136 in

Royal Mail Group v Efobi

, confirming that the tribunal weighs all the evidence, from whatever source, in deciding whether that threshold is met.

Unfair dismissal moves the burden in a different way. Here the employer goes first. Under section 98 of the Employment Rights Act 1996 the employer must show what the reason for the dismissal was and that it was one of the five potentially fair reasons — conduct, capability, redundancy, breach of a statutory restriction, or some other substantial reason. If the employer cannot do that, the dismissal is unfair without more. But once a fair reason is shown, the law does something unusual: the remaining question — whether dismissing for that reason was reasonable — carries no burden at all. Neither side has to prove it. The tribunal decides it neutrally, on all the evidence.

The same civil standard runs through the other Start My Claim tracks. In the small claims court the claimant proves the debt or the breach on the balance of probabilities. In an authorised push payment fraud complaint the position is striking: the bank must reimburse the customer unless it can prove the narrow exception of gross negligence — so on the central question, whether the customer was grossly negligent, it is the bank, not the defrauded customer, that carries the burden.

How it works in practice

Priya is 54. She has worked in her employer's analytics team for nine years, and her last three annual appraisals all rated her

"exceeds expectations"

. When a team-leader role comes up she applies — and is turned down. The job goes to a colleague who is 31.

Priya has noticed a pattern. Over the previous two years the team made four internal promotions, and every one went to someone in their late twenties or early thirties. When she asks why she was unsuccessful she is told only that the other candidate "interviewed better", with no scores and no notes to back it up.

Internal promotions in the team, last 24 months

Of those, going to staff aged 40 or over

Priya's appraisal rating, three years running

Standard the tribunal applies

More likely than not

This is enough to carry Priya over the first stage. The pattern of promotions, her strong appraisals and the vague explanation are facts from which a tribunal

conclude — absent another explanation — that her age counted against her. The burden now

shifts to the employer

To discharge it, the employer has to prove a reason that has nothing to do with Priya's age. If it can produce interview scoring sheets, completed on the day, showing the successful candidate genuinely scored higher against published criteria, it is likely to succeed — the burden is met and the claim fails. If instead the scores are missing, were written up afterwards, or do not match what the panel now says, the tribunal is entitled to find that the employer has not discharged the burden, and to conclude that age discrimination occurred.

Notice what decided it. Priya never had to prove the panel was thinking about her age — that would be nearly impossible. She had to raise a credible question. The law then required the employer to answer it.

Common pitfalls for claimants

Frequently asked questions

Sources & further reading

Not sure how to prove your side of the story?

Start My Claim helps you gather evidence, build a dated timeline and structure your documents — so the facts in dispute are set out clearly, whoever carries the burden.

Last reviewed: May 2026.

Statutory references checked against the Equality Act 2010 and the Employment Rights Act 1996 as in force on 21 May 2026.

This page is explanatory only and is not legal advice. Start My Claim is self-service software, not a law firm — its tools help you build and run your own case.