News & Insights

Who bears the burden?

Ian Machray considers an important Court of Appeal decision which has implications on how easy it is for employees to prove discrimination claims

It had, prior to the introduction of the Equality Act in 2010, been clear that a two-stage approach needed to be taken to the burden of proof in discrimination claims.  The employee had to first establish that there was, on the face of their own evidence, a case of discrimination.  Only if they were able to pass that stage, would the burden of proof shift to the employer to provide a non-discriminatory explanation.

In 2016 the Employment Appeal Tribunal concluded that this approach was wrong.  It stated that tribunals should instead consider all of the evidence, not just that from the employee, to decide whether or not there were facts from which it could conclude that discrimination had occurred.  The removal of the initial burden of proof on the employee made it easier to succeed with discrimination claims.

The Court of Appeal recently considered this issue in a race discrimination case brought by Mr Ayodele against Citylink.

Mr Ayodele’s discrimination claim was dismissed by the employment tribunal on the basis that he had failed to pass the first stage of the discrimination test, namely he had not proved facts from which the tribunal could conclude that discrimination had occurred.  The case was appealed to the Court of Appeal.

Mr Ayodele pleaded that the tribunal had erred in its approach by placing the burden of proof on him at the first stage. He submitted that the role of the tribunal was to consider all of the evidence, from every source, at the end of the hearing, so as to decide whether or not there are ‘facts’ from which it can conclude that discrimination occurred.

The Court of Appeal disagreed and decided that the employment tribunal had been correct in its interpretation of the burden of proof.  It held that although the language of discrimination legislation had changed the longstanding two-stage test was still appropriate.

This is a decision favourable to employers, as if a discrimination claim is brought against them the initial burden will once again be on the employee to prove facts that show that discrimination has occurred.  However, employers should not be over reliant on this decision and should, as before, be prepared and able to justify and explain the non-discriminatory basis for their actions.