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Discrimination: Orthodoxy Restored on Burden of Proof

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Does a Claimant in a discrimination claim have to prove facts from which an inference of discrimination could be drawn before the burden shifts to the Respondent?

Yes, held the Court of Appeal in Ayodele v Citylink, overruling the EAT's decision in Efobi v Royal Mail Group.

The Court of Appeal held that the 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) did not mean that a Claimant did not have to prove facts from which an inference of discrimination could be drawn, before the burden shifted to the Respondent to provide a non-discriminatory explanation. The Court held at paragraph 103 that "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.

There was no 'mischief' to be remedied with the new wording. 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 wished to use plainer English.

The Court of Appeal's decision has restored the 'orthodox' position on the burden of proof was familiar to practitioners before the Equality Act.

Thanks to Ed McFarlane of Deminos HR for preparing this case summary.