Why the burden of proof has shifted in discrimination cases

29 Jan 2018 By Maria Krishnan

The Court of Appeal has restored the previous status quo following two significant tribunal decisions. Maria Krishnan reports

The Equality Act 2010 prohibits unlawful discrimination. When assessing whether discrimination has taken place, a tribunal is bound to consider the provisions of section 136, which sets out the applicable burden of proof – which party is required to prove what. 

Until recently, many assumed the interpretation of section 136 was settled law. It required, in common with previous incarnations of equality legislation, that a claimant prove facts from which, in the absence of an adequate explanation, the tribunal could conclude that discrimination had taken place. If the claimant was not able to do so, their claim would fail. However, if a claimant could establish this prima facie case, the burden of proof shifted and, unless a respondent could prove that discrimination had not occurred, a finding in the claimant's favour had to follow. 

This widely accepted legal position came under challenge when the Employment Appeal Tribunal (EAT) heard Efobi v Royal Mail Group Ltd


Mr Efobi was employed by Royal Mail as a postman. During his employment, he made 33 unsuccessful applications for IT-based roles with Royal Mail. He claimed his applications had been rejected for reasons relating to his race. However, his claims were dismissed by the employment tribunal because Efobi had failed to overcome the first evidential hurdle. He had not made out a prima facie case so his claims could not succeed. Efobi appealed to the EAT, claiming that section 136 of the Act did not require him to establish anything. 

Efobi argued that section 136 requires only that there are facts from which the tribunal could conclude that discriminatory behaviour had occurred. There is no mention of who is to prove such facts and, in particular, there is no express obligation on a claimant to establish a prima facie case. 

The EAT agreed and found that the tribunal had erred in law when it required Efobi to prove a prima facie case. The EAT found it persuasive that while previous incarnations of equality legislation had explicitly stated that the complainant was required to prove facts from which a tribunal could conclude that discrimination had taken place, section 136 did not state that the claimant was bound to prove anything. 

This judgment was considered by many to have changed the accepted order in discrimination claims and left the law in a state of some uncertainty. This uncertainty was resolved by the Court of Appeal (CA) in Ayodele v Citylink Ltd when it determined that Efobi’s case had been decided incorrectly in the EAT. 


Mr Ayodele worked in Citylink’s warehouse. He claimed he had suffered discrimination, as a result of which he had been constructively dismissed. An employment tribunal found against Ayodele and his application to appeal against the decision was refused by the EAT. He lodged a subsequent challenge at the CA, arguing that the employment tribunal had misapplied the burden of proof in his case. He claimed that he had been required to prove a prima facie case that was not required under law. He relied on the EAT's findings in Efobi in support of his appeal. 

The CA carried out a thorough analysis of the law surrounding section 136, concluding that, while not expressly stated, the section did require Ayodele to prove a prima facie case. It said its interpretation maintains a fair balance between the rights of a claimant and those of a respondent: the claimant must 'start the case' so the respondent has a claim to address and the tribunal something to assess. 

Moreover, the CA noted that there was no reason to suppose that parliament had intended to remove the ‘first stage’ burden of proof from the claimant. There was no debate on such a matter and it did not appear to have been contemplated by parliament. Consequently, the CA ruled that the EAT was wrong to find as it did in Efobi.

The abolition of fees and prospect of limitless awards may entice some claimants to argue that they have suffered unlawful discrimination. However, they should proceed with caution now the CA has restored the status quo in discrimination claims. Claimants should advance as much supporting evidence as possible to ensure they are able to establish a prima facie case. Respondents will no doubt be pleased that claimants will once again be required to prove their claims in the first instance. It is still important for respondents to keep robust records of decision-making processes so these can be used to defend claims that make it over the first evidential hurdle.

Maria Krishnan is a solicitor in the employment and immigration department at Thrings

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