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Section 11(1) of the EEA places on the employer the burden to prove that the alleged discrimination was not unfair if the ground therefor is a listed one. However, Section 11(2) of the EEA places the burden to prove unfairness on the employee if the ground is an unlisted one.
The only difference between these two categories of alleged discrimination is that the second one deals with unlisted grounds. Two questions arise from this:
Firstly, is it fair that section 11(1) places the burden of proof on the employer bearing in mind that section 35 (3)(h) of our Constitution gives every accused person the right to be presumed innocent.
Secondly, doesn’t the fact that 11(2) of the EEA places the burden on the employee expose as unfair section 11(1)’s provision placing the burden on the employer?
Differently put, reading the two questions raised above together, shouldn’t section 11(1) be amended to place the burden on the employee so as to comply with the Constitution and with the principle of legislative consistency?
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