The Court of Appeal has reconsidered the question of whether the claimant bears the initial burden of proof in discrimination claims.

Ayodale v Citylink Ltd and another, Court of Appeal

Facts

Mr Ayodale brought claims for constructive unfair dismissal, race discrimination, racial harassment and victimisation, following his resignation. Allegations included: the way his manager spoke to him, delays in being paid, the manner in which his annual leave requests were handled, and his removal from the customer service desk.

An employment tribunal dismissed his claims, finding that Mr Ayodale had not established a prima facie case of discrimination. His appeal to the Employment Appeal Tribunal (EAT) failed. He appealed to the Court of Appeal, partly on the basis that the tribunal had been wrong to place any burden of proof on Mr Ayodale following the recent EAT decision in the case of Efobi v Royal Mail Group Ltd.

In Efobi, the EAT decided that the Equality Act 2010 had altered the burden of proof test, meaning that a tribunal must consider evidence from all sources at the end of the hearing, rather than the initial burden of proof being on the claimant, which was the previously accepted approach.

Court of Appeal decision

The Court of Appeal dismissed the appeal, upholding the decision of the employment tribunal. Mr Ayodale had failed to prove facts from which the tribunal could decide that discrimination had occurred. The EAT had been wrong in the case of Efobi; the wording of the Equality Act 2010 had not changed the established burden of proof and there was no indication that this was Parliament’s intention.

Consequences

After the (very) short-lived decision in the case of Efobi, this case restores the previously-accepted burden of proof test in cases of discrimination: it is the claimant who bears the initial burden of proof to establish his or her claim, and then the burden shifts to the respondent to provide a non-discriminatory explanation.

In practice, however, this will have little significant effect on how a respondent should prepare for defending a claim of discrimination. Tribunals can and will consider evidence presented by the respondent when considering whether the claimant has proved facts demonstrating a prima facie case of discrimination. In this case, for example, the respondent had presented evidence to show that many other employees had experienced difficulties with being paid, to counter the claimant’s assertion that it was due to his race.

One of the criticisms of the EAT in the Efobi case was that key decision-makers had not been called to give evidence on behalf of the respondent. Notwithstanding the reinstatement of the ‘burden of proof’ orthodoxy, it will still be prudent for respondents to prepare thoroughly and ensure that key witnesses are available to give evidence.

Permission to appeal the EAT’s decision in the Efobi case has been sought from the Court of Appeal, so the position may change if the appeal goes ahead.