This page references the employer duty to prevent sexual harassment under the Worker Protection Act 2023, being significantly strengthened from October 2026 — always check GOV.UK for the current position.
Introduction
Table of Contents
- Why Discrimination Claims Are Different: The Burden of Proof
- Common Defences Available to Employers
- The Reasonable Steps Defence for Harassment Claims
- Reasonable Adjustments: A Duty, Not a Discretion
- Why Exposure Is Higher Than Other Claim Types
- Watch Your Conduct During the Proceedings Themselves
- Building Your Evidence Early
- Contact Us for Employment Tribunal Support
- Final Thoughts
- Frequently Asked Questions
Why Discrimination Claims Are Different: The Burden of Proof
Unlike most other tribunal claims, discrimination cases under the Equality Act 2010 involve a shifting burden of proof. Once a claimant establishes facts from which a tribunal could conclude, in the absence of any other explanation, that discrimination occurred, the burden shifts to you as the employer to provide a genuine, non-discriminatory explanation. This is a significantly different starting position from claims like unfair dismissal, where the claimant generally carries the burden throughout — and it means a poorly evidenced or vaguely explained decision can be treated as discriminatory by default if you can’t offer a credible alternative account.
Common Defences Available to Employers
Several specific defences exist depending on the type of claim. For indirect discrimination, an objective justification defence is available where you can show a genuinely legitimate aim and that the measure in question was a proportionate way of achieving it — this requires more than simply asserting a business reason; the tribunal will scrutinise whether a less discriminatory approach could reasonably have achieved the same result. In narrow circumstances, a genuine occupational requirement defence can apply, where a particular characteristic is a genuine and determining requirement for the role itself, though this exception is applied restrictively and rarely covers as much ground as employers initially assume.
Additionally, employers should always check whether the claim was brought within the strict statutory time limit. Discrimination claims must be submitted to ACAS Early Conciliation within 3 months minus 1 day of the alleged act. Unless the claimant can show a “continuing act of discrimination” or prove it is “just and equitable” to extend time, out-of-time claims can be defeated on jurisdictional grounds.
The Reasonable Steps Defence for Harassment Claims
It’s worth understanding two related but distinct protections here, since they’re often conflated. There’s a long-standing statutory defence available where an employee’s individual act of harassment or discrimination is at issue: if you can show you took all reasonable steps to prevent that employee from acting in that way, you may not be liable for their conduct. Separately, since October 2024, there’s also a proactive duty under the Worker Protection Act to take reasonable steps to prevent sexual harassment specifically — this doesn’t defeat liability in the same way, but breaching it can add a further compensation uplift on top of any award, and the standard is being raised considerably from October 2026. Our guide on workplace harassment covers this duty in more depth. Genuinely robust policies, regular training, and consistent enforcement matter for both protections, not just one.
Reasonable Adjustments: A Duty, Not a Discretion
Where disability discrimination is alleged, the duty to make reasonable adjustments arises once you know—or ought reasonably to know—that an employee has a disability and is placed at a substantial disadvantage. Unlike indirect discrimination, reasonable adjustments cannot be justified after the fact; the duty requires proactive consideration and implementation once the disadvantage is identified. A tribunal will look closely at whether adjustments were properly considered and implemented, or whether the issue was left unaddressed until it became a formal complaint. Documenting that adjustments were genuinely considered, even where a particular request wasn’t ultimately reasonable to implement, is far stronger than being unable to show any consideration took place at all.
Why Exposure Is Higher Than Other Claim Types
Discrimination claims carry substantially higher financial exposure than most other tribunal claims. Compensation for financial loss is generally uncapped, and a successful claim can also attract a separate injury to feelings award on top, assessed against guideline bands that increase periodically. Our guide on what an Employment Tribunal can actually award sets out how this compares with capped claim types, and it’s genuinely worth factoring this higher exposure into how early you consider resolving a claim rather than defending it through to a hearing regardless of underlying risk.
Watch Your Conduct During the Proceedings Themselves
It’s worth being genuinely careful about how the claimant is treated once proceedings are underway, not just how the original complaint was handled. Detrimental treatment because someone has brought a discrimination claim — exclusion, a sudden increase in scrutiny, or an unrelated disciplinary process that follows shortly after — can amount to a fresh, separate victimisation claim layered on top of the original one, regardless of how the underlying discrimination claim is ultimately resolved.
Building Your Evidence Early
Given the burden of proof shift, having a clear, well-documented, genuine explanation for the decision in question is considerably more important here than in claims where you’re not required to justify your reasoning from the outset. Consistent treatment of comparable situations, contemporaneous decision-making records, and carefully prepared witness evidence from the people who actually made the relevant decisions all matter considerably in a discrimination claim specifically.
Contact Us for Employment Tribunal Support
Discrimination claims carry a distinct procedural framework and materially higher exposure than most other claim types, which makes an early, honest assessment of your position particularly valuable.
Final Thoughts
Discrimination claims aren’t defended the same way as other tribunal claims. The shifting burden of proof means your explanation and evidence matter from the outset, the available defences are narrower and more technical than employers often expect, and the financial exposure is meaningfully higher. Understanding these differences early shapes not just how you defend the claim, but whether defending it through to a hearing is the right call in the first place.
Frequently Asked Questions
What is the burden of proof in a discrimination claim?
Once a claimant establishes facts from which discrimination could be inferred, the burden shifts to the employer to provide a genuine, non-discriminatory explanation — a materially different starting position from most other tribunal claims.
What defences are available for indirect discrimination?
An objective justification defence, showing a genuinely legitimate aim and that the measure was a proportionate way of achieving it, with the tribunal scrutinising whether a less discriminatory approach could have worked instead.
Is there a defence for individual acts of harassment by staff?
Yes, a long-standing statutory defence applies where you can show you took all reasonable steps to prevent an employee’s discriminatory conduct — distinct from the newer proactive duty to prevent sexual harassment specifically, which affects compensation rather than liability itself.
Why is compensation exposure higher for discrimination claims?
Compensation for financial loss is generally uncapped, and a separate injury to feelings award can apply on top, unlike many other claim types where compensation is subject to a statutory cap.
Can treating a claimant differently during proceedings cause additional problems?
Yes. Detrimental treatment because someone has brought a discrimination claim can amount to a separate victimisation claim, regardless of the outcome of the original complaint.
What matters most in building a defence?
Consistent, contemporaneous documentation showing a genuine, non-discriminatory reason for the decision, given that the burden of proof shifts to you once the claimant establishes an initial case.