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Another good decision for employers: Burden of Proof restored in discrimination cases

The Claimant, Mr Ayodele, originated from Nigeria. He was employed by City Link and brought various claims at the Employment Tribunal against City Link when he was dismissed which included a claim for discrimination on the grounds of his race. The Employment Tribunal dismissed Mr Ayodele’s claim because it said that Mr Ayodele was unable to discharge the initial burden of proof.

Mr Ayodele appealed and the  EAT confirmed the tribunal’s approach and dismissed his appeal. Mr Ayodele then appealed to the Court of Appeal on the basis that the tribunal had incorrectly imposed the initial burden of proof on him to show a case of discrimination.

The Court of Appeal disagreed with Mr Ayodele and determined that it must be for Mr Ayodele to initially make his case otherwise there will be nothing for City Link to respond to. The Court of Appeal stated: “In a discrimination case, before a tribunal can start making an assessment, the claimant has got to start the case, otherwise there is nothing for the employer to address and nothing for the tribunal to assess”. Therefore it  must be for the Claimant to initially show there is a case to answer and that the burden of proof then shifts to the Respondent.

At the Court of Appeal the interpretation of section 136 (2) and (3) of the Equality Act 2010 (dealing with the Burden of Proof) was mooted. It held that the change in the wording (from the Race Relations Act) did not mean that a Claimant did not have to prove facts from which an inference of discrimination could be drawn, before the burden shifted to the employer to provide a non-discriminatory explanation. The  Court of Appeal held that the change in wording made no substantive change to the law.

This is a welcome decision. In 2016 the Employment Appeal Tribunal in the case of Efobi v Royal Mail Group Ltd held that it is for the tribunal to consider all the evidence, not just from the claimant, but from all sources, at the end of a hearing, to decide whether or not there are facts from which it can conclude that discrimination has occurred.  In short Efobi confirmed that there was no initial burden on a Claimant to prove discrimination.  It now appears from the Ayodele case that the orthodoxy has been restored and the initial burden of proving prima facie discrimination once again rests with a Claimant.

What does this mean for you or your business?

This case confirms again that a Claimant in a discrimination claim must prove facts from which an inference of discrimination could be drawn before the burden of proof shifts to the employer to provide a non-discriminatory explanation. This is a positive decision for employers and restores the original position of how the burden of proof operates in discrimination claims. It is very helpful for employers because it means that an employee making a claim has to jump a hurdle before the burden of proof is on the employer and acts as another deterrent to weed out vexatious claims. It also confirms that a tribunal cannot draw adverse influences from an employer’s failure to produce evidence to show their actions were not discriminatory.

What do you need to be doing now?

Line managers and HR professionals should be trained on the Equality Act.  Employers should have clear policies so they know how to avoid discrimination claims and how best to manage their employees if such issues are raised. For example, it is important to be consistent when dealing with employees or prospective employees and keep clear paper trails of any decisions that are made.


These notes have been prepared for the purpose of articles only. They should not be regarded as a substitute for taking legal advice.

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