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Burden of proof in discrimination cases

In our September article Discrimination and burden of proof – a new approach we covered the case of Efobi v Royal Mail Group Ltd in which the Employment Appeal Tribunal held that the burden of proof provisions contained under sections 136(2) and (3) of the Equality Act 2010 do not place any burden on a claimant to establish a prima facie case for discrimination.

However, the Court of Appeal has now held that this decision was wrong.


In the case of Ayodele v CityLink Ltd and another, the Claimant brought claims against his employer including claims of race discrimination. The discrimination claim was dismissed by an employment tribunal on the basis that the Claimant had failed to establish prima facie evidence of less favourable treatment and therefore the burden of proof had not shifted to the respondent. The Employment Appeal Tribunal (“EAT”) dismissed the Claimant’s appeal.

However, the Claimant raised a ground of appeal on the basis of the decision in Efobi whereby it had been held that there was no burden of proof on a claimant to establish less favourable treatment and that it was for the tribunal to consider all of the evidence, from all sources, and to decide at the end of the hearing whether there are facts from which it could conclude that discrimination has occurred.

However, the Court of Appeal (“CA”) dismissed the appeal. It held that there was nothing unfair about requiring a claimant to bear the burden of proof at the initial stage and there was no reason why a respondent should have to discharge a burden of proof before the claimant had shown a prima facie case to be answered. The decision of the EAT in Efobi v Royal Mail Group Ltd was wrong.


The CA decision is good news for employers as it means that the burden of proof requirements in discrimination cases return to the previous accepted approach. It is up to a claimant to prove facts from which the tribunal could infer that discrimination has taken place before the burden will pass to the respondent to prove that there had been no discrimination.


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