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More on the burden of proof in direct discrimination

Meredith Hurst Friday, December 22, 2017

A few weeks ago, we reported on the case of Efobi v Royal Mail in which the EAT seemed to have shifted the emphasis in the burden of proof in discrimination cases. A recent Court of Appeal decision has shifted the position back leaving the orthodoxy undisturbed.

What happened in Efobi?

The Efobi case involved a Royal Mail delivery worker who had applied for, and failed to secure, a number of roles in IT which were more suited to his qualifications. The Employment Tribunal decided that Mr Efobi had not satisfied them that there were "...facts from which we could conclude that there was discrimination" (para 4.2 ET decision). On appeal to the EAT, there was a close analysis of the wording of section 136 of the Equality Act 2010, as compared with section 63A of the Sex Discrimination Act 1975 which had formed the basis for the 'shifting burden of proof' approach taken in discrimination cases, and as set out in the case of Igen v Wong. The EAT found that the wording in the Equality Act 2010 was different, and included no initial requirement onthe claimantto prove facts on which a finding of discrimination could be found.

Ayodele v Citylink

In late November this year, the Court of Appeal looked at the burden of proof in the case of Ayodele v Citylink. The Claimant's allegations of race discrimination had already been rejected by the Employment Tribunal and the EAT by the time the matter came to the Court of Appeal. In addition to appealing the finding that the Claimant had not established prima facie evidence of less favourable treatment, so the burden of proof did not then shift to the Respondent employer to explain the treatment, the Claimant also argued that in light ofEfobi, that approach was fundamentally wrong.

With respect to the Claimant's first ground of appeal, the Court of Appeal examined he decision of the Employment Tribunal and held that the Tribunal had decided the case on its facts. It seems that the culture at the employer's depot in Swansea where the Clamant worked, was universally chaotic. Although the Claimant's treatment was not ideal, it was not 'less favourable treatment' because of his race - other employees would have been treated the same.

Restoring the 'shifting' burden of proof

The Court of Appeal then considered the Claimant's argument based on the decision of the EAT in Efobi. It decided that the ruling inEfobiwas wrong. S.136 Equality Act 2010 still places the obligation on the Claimant to establish facts which could lead to a finding of discrimination. Effectively, a case must start somewhere, so the Claimant should prove those facts, so that the Respondent can then respond to them.

The Court of Appeal also recognised an element of fairness in this 'shifting burden of proof' approach.  In para 93 of the decision, Lord Justice Singh explains,

"I can see no reason in fairness why a respondent should have to discharge that burden of proof unless and until the claimant has shown that there is a prima facie case of discrimination which needs to be answered. It seems to me that there is nothing unfair about requiring that a claimant should bear the burden of proof at the first stage. If he or she can discharge that burden (which is one only of showing that there is a prima facie case that the reason for the respondent's act was a discriminatory one) then the claim will succeed unless the respondent can discharge the burden placed on it at the second stage."

Essentially, there needs to be a 'case to answer', which the Claimant should establish, before the Respondent should have to deal with the allegations.

The Court of Appeal considered the background preparations for the Equality Act 2010, and noted that there was nothing to suppose that Parliament intended to remove the burden from the Claimant. . Finally, it recognised that the EU Equal Treatment Directive did not prohibit such a requirement on the Claimant.

Back to where we were

The result of Ayodele v Citylink is that the position is as it was beforeEfobi. If a claimant alleges discrimination, they must prove facts which could give rise to a finding of discrimination. It is then for the respondent to provide an explanation for the treatment the claimant experienced, and to show that it does not arise from discrimination.

It's worth noting too, that the judge inEfobimentioned that she would have decided the case in the same way under the preceding legislation. We understand that permission to appeal is being sought in the Efobi case, so the Court of Appeal may have a further opportunity to look at this.

If you have any questions about this or any other employment law matter, get in touch! We are a specialist employment law firm with expertise in all areas of discrimination law.

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