24 November 2017

In our blog ‘Defending unlawful discrimination claims: Beware!’ we noted that the Employment Appeal Tribunal had suggested that the rules on burden of proof under the Equality Act 2010 ought to differ from those under the predecessor legislation given the difference in wording.

This issue was considered again, this time by the Court of Appeal in Ayodele v Citylink Ltd. The Court of Appeal has returned the legal position back to the orthodoxy and decided that the Equality Act did not change the position in relation to proving discrimination.

Mr Ayodele was a black man from Nigeria. Amongst other things he claimed race discrimination upon termination of his employment. The Employment Tribunal dismissed his discrimination claims on the basis that he had not brought forth sufficient evidence to establish prima facie evidence of unlawful discrimination and as such the burden of proof had not shifted to the employer to show that the reason for the treatment was not because of his race. His appeal to the Employment Appeal Tribunal failed. 

At the Court of Appeal, the Claimant argued that the position in relation to burden of proof was as found by the Employment Appeal Tribunal in Efobi v Royal Mail Group Ltd. He argued that this meant there was no burden of proof on the Claimant in a discrimination case since the wording of the legislation required the Employment Tribunal to consider all the evidence, from all sources, following the conclusion of the hearing to decide whether or not there are facts from which it can conclude that discrimination occurred. Only then should the Employment Tribunal consider whether the employer has shown that the reason for the treatment was in no sense whatsoever due to the protected characteristic.

The Court of Appeal did not agree. While the wording of section 136 of the Equality Act is different from the wording of the predecessor statutes, this was not consistent with there being a change in the rules of burden of proof. In discrimination cases, the Court of Appeal held that before an Employment Tribunal can determine whether or not there has been unlawful treatment, there is an onus on the Claimant to establish prima facie discrimination since otherwise there is nothing for the Respondent or Tribunal to determine. The Court of Appeal concluded that it is not for the Respondent to bear the onus of proving the absence of discrimination until the Claimant has shown a prima facie case of discrimination exists on the facts. In short, the Court of Appeal held there is nothing unfair about requiring the Claimant to bear the burden of proof at the first stage given it is the Claimant who raised the matter.

The Court of Appeal looked into the legislative history and background and decided that there was no evidence to lead to a conclusion that Parliament intended to change the orthodox position in relation to burden of proof when it enacted the 2010 Act. The position that existed prior to Efobi remains good law.

This is a good reminder of how quickly our law can change. Prior to the Efobi position, the rules in relation to burden of proof appeared to be settled. Following the Employment Appeal’s judgment, the orthodox position was shattered and a new dawn had realised. Many thought the new legal position was obvious when the statutory wording was considered. However, the Court of Appeal has reminded us that very rarely are these issues straightforward and proper and full consideration needs to be given to the background to the statute and the practical position.

The case is a good reminder that in discrimination cases the facts are vital. An Employment Tribunal will need to be satisfied that there is some factual basis for finding unlawful discrimination before looking to the Respondent for evidence that shows that the reason for the treatment was not connected to the protected characteristic. While litigators (and indeed parties) rarely consider burden of proof, given the fluctuations in the legal position, and given the complexity of the law in this area, ensuring an up to date understanding of the law and its application in practice is vital.

Call your BTO employment law expert who can help you navigate the legal maze!

The full Judgement can be read here: Ayodele v Citylink Ltd

Also further reading can be found here: Defending unlawful discrimination claims: Beware!

Contact: David Hoey, Partner dho@bto.co.uk T: 0141 221 8012