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Court of Appeal shifts key burden of proof in discrimination cases back to claimants

8 Dec 2017 By Miriam Kenner

Ruling welcomed for restoring orthodox approach that employers and their lawyers found to strike a fair balance

A claimant in a discrimination case must prove the facts on which an inference of discrimination can be made before that burden moves to the respondent, the Court of Appeal has ruled.

The ruling in the case of Ayodele v Citylink, which the Court of Appeal handed down on 24 November, has overturned a surprise shift in position by the Employment Appeal Tribunal’s August 2017 decision in Efobi v Royal Mail Group.

By doing so, it has turned back the law on who – employee or employer – carries the burden of proof of discrimination in employment claims, to the position in place before the Equality Act 2010 came into force.

The question arose after the judges were asked to reconsider the law after a change of wording on who carries the burden. They found that the change of wording in section 136(2) of the Equality Act 2010 from previous discrimination legislation meant that the burden of proof had changed.

Ajayi Ayodele was originally from Nigeria and described himself as black. Citylink employed him as a warehouse operative in its Swansea distribution centre, initially through an agency but directly from 2007. He resigned in October 2012 in response to a repudiatory breach of his employment contract, claiming constructive dismissal, racial discrimination, racial harassment and victimisation.

As some of his complaints dated back to the time when he began employment, the case straddled the date when the Equality Act came into force. This meant the employment tribunal had to consider that Act and the legacy Race Relations Act 1976.

Ayodele lost his claim for racial discrimination at Cardiff Employment Tribunal in 2013 but the case went to the Court of Appeal in 2015, seeking to rely on a new point in the Efobi case.

Efobi, a postman, unsuccessfully applied for about 30 different jobs with Royal Mail. He claimed that his applications were rejected because of his race and this was discriminatory.

The Efobi case appeared to change the law because of the finding that, under the Equality Act, there was no burden on the claimant to prove discrimination at the first stage of his claim, and there was no shifting burden of proof from employee to employer – which at the time shocked employment lawyers.

Jo Powis, employment lawyer at Reed Smith, told People Management that the decision in Efobi “came as a surprise and was expected to make it easier for claimants to succeed in discrimination claims”.

In Efobi, Judge Laing decided there was no burden on claimants to prove facts from which a tribunal could decide that the respondent had discriminated. “It may therefore be misleading to refer to a shifting of the burden of proof, as this implies, contrary to the language of section 136(2), that parliament has required the claimant to prove something,” she said.

Instead of the claimant having to prove the employer discriminated against him first, the tribunal should instead consider first "all the evidence, from whatever source it had come, and not only the evidence adduced by the claimant", Laing ruled in Efobi.

In Ayodele’s Court of Appeal judgment, however, Lord Singh overruled Efobi and, in a ruling more favourable to employers, decided that earlier case law – Igen and Madarassy – was still relevant, and that the claimant will have to prove discrimination first before the burden of proof ‘shifts’ to the employer.

Singh held that, by removing words that might indicate that the complainant had to prove facts, the Equality Act did not mean that a claimant did not have to prove facts from which discrimination could be inferred. The employer then must provide a non-discriminatory explanation for its actions.

Singh said: “I can see no reason in fairness that 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 that needs to be answered.”

The decision in Ayodele “will be welcomed for restoring the orthodox approach that employers and their lawyers are familiar with and that has generally been thought to strike a fair balance”, Powis said.

Makbool Javaid, employer partner at Simons Muirhead & Burton, said: “The Court of Appeal’s judgment confirms that there is a burden of proof on the claimant and that the Equality Act 2010, while worded differently from its predecessor legislation, does not change this.” 

However, “permission is being sought to appeal the Efobi judgment and it will be interesting to see how this issue may be addressed any Court of Appeal hearing or later judgment”.

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