We reported on a decision of the Employment Appeal Tribunal in Efobi v Royal Mail Group Ltd in September 2017. Please see the previous article here. This case changed the long established approach that the claimant bears the initial burden of proof in discrimination claims, possibly making it easier for claimants to successfully bring such claims. In Ayodele v Citylink Ltd the Court of Appeal has held that the Efobi case was wrongly decided and that the burden of proof under the Equality Act 2010 does start with the claimant.
Mr Ayodele is a black African man. Following the termination of his employment, Mr Ayodele brought a number of claims against his ex-employer, Citylink, including race discrimination. Mr Ayodele lost his claim in the Employment Tribunal on the grounds that he had not proved facts from which the Tribunal could conclude, absent an explanation, that there had been discrimination. His appeal to the Employment Appeal Tribunal was also rejected.
Mr Ayodele appealed to the Court of Appeal. Relying on the decision in Efobi v Royal Mail Group Ltd, Mr Ayodele argued that the Equality Act 2010 does not impose a burden of proof on a Claimant at all. Instead, the Tribunal should review all the evidence at the end of the hearing to decide if it is possible to infer discrimination. If discrimination can be inferred from all the evidence, there will be a finding of discrimination unless the respondent can give a non-discriminatory explanation.
The Court of Appeal dismissed the appeal, holding that the interpretation of the Equality Act in Efobi v Royal Mail Group Limited was wrong, and should not be followed.
The Court held that they could see no reason why a respondent should have to discharge the burden of proof, unless and until the claimant has demonstrated enough evidence from which discrimination could be inferred. Therefore, the Court concluded that there was nothing unfair about requiring a claimant to bear the burden of proof at the first stage.
Notwithstanding this, the court made it clear that the tribunals should consider all the evidence at this first stage, not just the evidence provided by the claimant.
This is an important decision as it clarifies who bears the initial burden of proof in discrimination claims and returns the law to the usual established principles under which the claimant has to first prove facts from which discrimination can be inferred.
Although legally important, this decision is unlikely to have a major impact on the reality of what decisions are made by tribunals. In practice, tribunals tend to look at all the evidence to find the reason why a respondent acted as it did without necessarily being hidebound by the technicalities of shifting burdens of proof.