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Barry  Stanton
Barry Stanton,
Burden of proof in discrimination cases
30 November 2017

Earlier this year the EAT ruled in Efobi v Royal Mail that the way in which the Equality Act 2010 had been interpreted when considering the burden of proof in discrimination cases, was wrong. This issue has now been heard by the Court of Appeal and we report on their decision.

Historically, prior to Efobi, tribunals had applied the “reverse burden of proof” in discrimination claims. This meant that where a claimant brought a claim for discrimination they had to show first that there were facts from which the tribunal could decide there was an arguable case of discrimination. If it did this, the burden of proof shifted to the employer to demonstrate that it had not discriminated. This is known as the reverse burden of proof. However, in Efobi, the EAT held that the shifting of the burden of proof was in fact wrong and courts and tribunals had been misinterpreting the Equality Act 2010. Instead, according to the EAT, what should happen in discrimination cases was that the tribunal should hear evidence from the claimant and the respondent before making a decision as to whether there was a discrimination claim. This caused issues for employers defending claims for discrimination claims.

However, the burden of proof in discrimination cases has been re-examined by the Court of Appeal in Ayodele v Citylink Limited & Others. The Court of Appeal has held that the approach suggested by Efobi is wrong and that there is an initial burden of proof on a claimant in discrimination cases to demonstrate that there is an arguable case.

Whilst this may not appear to be a significant shift, what it means is that when bringing a discrimination claim a claimant has to at least demonstrate that there are facts upon which a tribunal could find that discrimination had taken place. If a claimant cannot do that then they will lose. The Court of Appeal noted that it had to be for the claimant in bringing their claim to prove facts and until it did so the employer had nothing to disprove.

The reinstallation of the need for the claimant to prove basic facts before the burden shifts to the employer is to be welcomed. If Efobi had been upheld it would potentially have created significant problems for an employer defending a discrimination claim. If the interpretation of burden of proof had been allowed to continue as in Efobi, it would have allowed the tribunal, when making its assessment of whether discrimination had taken place, to take into account matters such as which witnesses had or had not been called by a respondent, something which, when determining whether the claimant has established a case of discrimination, is irrelevant.

To discuss issues of discrimination and harassment within your organisation or for help and advice in defending employment tribunal claims, please contact our Employment Team on 0118 952 7284.

Boyes Turner’s Employment and HR Training Team is running a specific course focusing on sexual harassment at work (Sexual Harassment – What Employers need to Know”) on 25 January 2018 at its Reading office. To find out more or to book your place, please click HERE.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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