Discrimination - the burden of proof

In a discrimination claim, does a Claimant have to prove facts which imply discrimination before the burden shifts to the Respondent?

Yes, ruled the Court of Appeal in its judgment in Ayodele v Citylink. This overruled a previous decision in the Employment Appeal Tribunal's decision in the Efobi v Royal Mail Group case.

The Equality Act

There has been a change in the wording of s132(2) of the Equality Act from previous discrimination legislation, removing words that might indicate that the complainant had to prove facts. The Court of Appeal held that this did not mean that a Claimant did not have to prove facts from which an inference of discrimination could be drawn.

The Court stated that paragraph 103 'all the evidence, from whatever source it had come, and not only the evidence adduced by the claimant', should be considered at the first stage.

Then, after this, the burden shifts to the Respondent to provide a non-discriminatory explanation.

Plainer English

Kate Fretten, Partner in Frettens' Employment Team, says “The EU Directive providing for s136 did not require there to be no burden on the Claimant at the first stage. An Advocate-General's opinion indicated that requiring facts to be proved at the first stage maintained a fair balance between parties. The previous legislation was not entirely clear and Parliament, believe it or not, wished to use plainer English. The Court of Appeal's decision has restored the 'orthodox' position on the burden of proof, which was familiar to practitioners before the Equality Act was changed.”

At Frettens, all of our solicitors offer a free initial meeting or chat on the phone to answer your questions. If this article raises issues for you or your business, please call us on 01202 499255 and Kate or Paul will be happy to discuss it with you.