Carga de la prueba y estándar probatorio en el despido discriminatorio

Abstract

This paper examines the burden of proof and the standard of evidence in discriminatory dismissal proceedings within the Spanish legal system, starting from the inherent difficulty victims face in proving discriminatory conduct. The substantive legal framework establishes a special rule that departs from the general principle of Article 217 LEC: pursuant to Articles 96.1 and 181.2 LRJS and their judicial interpretation, the employer bears the burden of demonstrating objective grounds once the claimant provides reasonable indications of discrimination.
The analysis focuses on the stage preceding the application of Article 96.1 LRJS, questioning whether, in cases of discrimination based on grounds other than trade union activity (such as health, sexual orientation, or religion), the claimant must allege and prove their personal condition to activate the protective mechanism. While this requirement is accepted in union-related discrimination, it risks producing secondary victimization in other contexts.
The paper interprets Article 96.1 LRJS as a presumption and concludes that, although effective for distributing evidentiary burdens, requiring proof of vulnerability is harmful. As an alternative, it proposes the “interim truth” model, a system that functions as a presumption but dispenses with the base proposition. This approach shifts the evidentiary focus to the respondent’s conduct, requiring only reasonable clues that the alleged act cannot be explained “but for” the prohibited criterion. It thus strengthens anti-discrimination protection while preserving the claimant’s dignity and preventing revictimization.