ABSTRACT
Direct discrimination can be covert, resulting from a state of mind which, by its very nature, is not likely to be susceptible to direct proof.65 A claim may develop from a feeling, whether based on instinct or a certain amount of knowledge, that the best person has not been appointed. Defendants will almost always put forward an alternative explanation for their behaviour, in some cases because they have every incentive to do so, and also as it is possible to be unaware that one is engaging in discriminatory behaviour. Discrimination often results from stereotypes, assumptions and the like which may lead an employer to behave in a particular manner. Furthermore, the law must counter the fact that almost all the information as to what did occur is within the employer’s control. It is important that tribunals are prepared to draw inferences of discrimination in cases where direct evidence is not and cannot be forthcoming.
