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Who Bears the Initial Burden of Proof in Discrimination Claims?

on Friday, 01 February 2019.

We previously reported the Employment Appeal Tribunal's (EAT) decision in Efobi v Royal Mail (Efobi) case, which departed from the long established principle that the claimant bears the initial burden of proof in discrimination claims.

The EAT controversially held that there was no initial burden on the claimant to prove the facts from which a tribunal could then decide if the alleged discrimination had occurred. You can read our full article on the EAT’s decision here.

The Court of Appeal (CA)

Prior to Efobi reaching the CA , the court considered the same question concerning the burden of proof in the case of Ayodele v Citylink (Ayodele). In Ayodele, the CA held that the EAT’s interpretation in Efobi had been incorrect and restored the position that it is for the claimant to prove facts from which an inference of discrimination can be drawn, before the burden shifts to the respondent to provide a non-discriminatory explanation.

Unsurprisingly, the CA in Efobi followed the decision in Ayodele and held that the correct approach is that the claimant should prove the initial facts.

What Does This Mean For Employers?

This decision restores the status quo under discrimination legislation pre-dating the Equality Act 2010 that a two-stage approach to the burden of proof in discrimination claims applies:

  • A claimant must first establish facts from which a tribunal could conclude on the balance of probabilities, in the absence of an adequate explanation, that the alleged discrimination has occurred.
  • If this is the case, then the burden will shift to the respondent and the tribunal will go onto consider whether the respondent's explanation is sufficient to show that they did not discriminate against the claimant.

For more information, please contact Eleanor Boyd in our Employment Law team on 020 7665 0940.

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