The Court of Appeal has held that the EAT ruling in Efobi v Royal Mail Group (that it is not incumbent on the claimant in a discrimination claim to prove a prima facie case, summarised in our blog post here) is wrong. The claimant does have the initial burden of showing a prima facie case of less favourable treatment before the burden shifts to the respondent to provide a non-discriminatory explanation.

Although the wording in the Equality Act differs from its predecessors, there was no evidence of a parliamentary intention to change the burden of proof; rather the drafting was intended to reflect case law clarifying that tribunals can take into account all the evidence, including evidence presented by the respondent as to whether there was less favourable treatment, at the first stage of the burden of proof (Ayodele v Citylink Ltd) .

Permission to appeal has been sought in the Efobi case.