Orthodoxy restored on discrimination burden of proof and is on the Claimant

In Ayodele v Citylink Ltd and anor, the Court of Appeal has held that the burden of showing a prima facie case of discrimination under S.136 of the Equality Act 2010 remains on the claimant. This provision made no substantive change to the law when it came into force in October 2010 and Mrs Justice Elisabeth Laing was wrong to hold otherwise in the EAT in Efobi v Royal Mail Group Ltd.

A, a black man originally from Nigeria, brought a number of claims against his former employer, C Ltd, following the termination of his employment, including claims of race discrimination. The tribunal dismissed his discrimination claims on the basis that A had not established prima facie evidence of less favourable treatment and therefore the burden of proof had not shifted to the respondent. A’s appeal to the EAT was dismissed. Before the Court of Appeal, A raised a new ground of appeal. He submitted that there was a fundamental error in the approach taken by the employment tribunal as to the proper application of the burden of proof under S.136 EqA. He relied on Elisabeth Laing J’s decision in the EAT in Efobi v Royal Mail Group Ltd (Brief 1078), to the effect that the wording of S.136 EqA does not impose a burden of proof on a claimant at all. Instead, it requires the tribunal to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not there are ‘facts’ from which it can conclude that discrimination occurred and, if so, it must so find unless the respondent can discharge the burden on it. A pointed to the fact that in his case the tribunal had directed itself that there was a burden of proof on him at the first stage of the enquiry and therefore it fell into error.

The Court of Appeal dismissed the appeal. It noted that the wording of S.136 EqA is different from the wording of the equivalent predecessor provisions, in that there is no longer any express reference to the claimant being required to prove facts. It rejected A’s suggestion that there was an analogy to be drawn with the assessment of fairness of a dismissal in an unfair dismissal case, where there is no burden on either party. In that context, the tribunal is required to make an assessment in which it is not apt to refer to the burden being on either party. However, in a discrimination case, before a tribunal can start making an assessment, the claimant has got to start the case, otherwise there is nothing for the respondent to address and nothing for the tribunal to assess.

The Court of Appeal could see no reason why a respondent should have to discharge the burden of proof unless and until the claimant has shown a prima facie case of discrimination that needs to be answered. Accordingly, it held that there is nothing unfair about requiring a claimant to bear the burden of proof at the first stage.

The Court also observed there was no reason to suppose that Parliament enacted S.136 to remove the burden of proof from a claimant. Furthermore, the EU Burden of Proof Directive (No.97/80), which S.136 gives effect in domestic law, does not require there to be no burden on a claimant at the first stage, and the legal community has proceeded for the last seven years on the assumption that no change of substance was made by S.136. The change in wording from the predecessor provisions simply made clear that what should be considered at the first stage is all the evidence, and not only the evidence adduced by the claimant: it should be regarded as no more than legislative ‘tidying up’. The Court concluded that previous decisions of the Court of Appeal, such as Igen Ltd and ors v Wong and other cases (Brief 777), as approved by the Supreme Court in Hewage v Grampian Health Board (Brief 958), remain good law and should continue to be followed by the courts and tribunals. It therefore held that the interpretation of S.136 by Elisabeth Laing J in the EAT in Efobi was wrong and should not be followed.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1913.html