Which Party Bears the Initial Burden of Proof in a Discrimination Claim?
In a recent case, the Court of Appeal has restored the burden of proof orthodoxy and confirmed that it is for the claimant to prove facts from which an inference of discrimination can be drawn before the burden of proof shifts to the respondent.
Why the Confusion?
In Efobi v Royal Mail Group Ltd, the Employment Appeal Tribunal (EAT) departed from the long established principle that the claimant bears the initial burden of proof in discrimination claims.
The EAT held that in cases of discrimination, a tribunal must consider all the evidence, from all sources. Then, from this, the tribunal must decide if there are 'facts' from which it can conclude that discrimination has occurred. The EAT based its decision on the fact that s.136 of the Equality Act 2010 refers to 'facts' generally rather than facts proved by the Claimant.
The Current Position
In Ayodele v Citylink, the Court of Appeal (CA) rejected this interpretation of the Equality Act 2010. They held that the EAT was incorrect, and 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. The CA held that there was nothing unfair in this approach.
Best Practice
This approach has been welcomed as restoring certainty around the question of the burden of proof in discrimination claims. From an employer's perspective, the decision is a technical one and the focus should in any event be on preventing incidents of discrimination from occurring. Employers will be assisted in this aim by maintaining clear equal opportunities policies and ensuring staff receive adequate training on the Equality Act 2010.