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Discrimination: Burden of Proof

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By s.136(2) Equality Act 2010 there is a burden on the claimant to prove facts before the burden 'shifts' to the respondent. Right?

Wrong, held the EAT in Efobi v Royal Mail Group Ltd.

The claimant was a postman. He applied unsuccessfully for about 30 alternative jobs with Royal Mail. He complained that his job applications were rejected because of his race.

Laing J held that there is no burden on claimants to prove facts from which a tribunal could decide that the respondent has discriminated: “Section 136(2) … requires the ET, instead, to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not ‘there are facts etc’ … 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...”

This is a significant departure from the conventional interpretation of the burden of proof in earlier cases (e.g. Igen v Wong). However, such cases interpreted the burden of proof provisions in predecessor legislation (e.g. the Sex Discrimination Act) which are worded differently to the Equality Act 2010.

Thanks to Daniel Dyal of Cloisters for preparing this case summary.