Problems of Proof

Abstract

The broadened definition of the evil, and the enlarged scope and application of the present Act, do not of themselves ensure its increased effectiveness in combating discrimination. This will depend above all else on whether the legal principles and procedures developed to govern proof of discrimination are not unduly restrictive. This chapter will explore the practical difficulties, perhaps seemingly humdrum but ultimately crucial to the effective enforcement of the law, that seem likely to arise in litigation. It will first look at problems specific to direct discrimination, then at those of indirect discrimination, and finally at matters common to both. Whilst they will be discussed in the context of the adjudication of individual complaints, most are equally relevant to formal investigations undertaken by the CRE. A final section will analyse the remarkably contentious question whether an employer is entitled to withhold information in his possession from a complainant on grounds of confidentiality.