40.—(1) This regulation applies to any claim brought under regulation 39 in a county court in England and Wales or a sheriff court in Scotland.
(2) Where, on the hearing of the claim, the claimant proves facts from which the court could, apart from this regulation, conclude in the absence of an adequate explanation that the respondent—
(a)has committed against the claimant an act to which regulation 39 applies; or
(b)is by virtue of regulation 25 (liability of employers and principals) or 26 (aiding unlawful acts) to be treated as having committed against the claimant such an act,
the court shall uphold the claim unless the respondent proves that he did not commit, or as the case may be, is not to be treated as having committed, that act.