Burden of proof in discrimination claims

In our Legal Employment Update, dated 29 September 2017, we reported on the case of Efobi v Royal Mail Group Limited, in which the Employment Appeal Tribunal (EAT) held that, in discrimination claims, a tribunal should consider the entirety of the evidence from all sources before concluding whether (in the absence of an explanation from the Respondent) discrimination had occurred.  The judgment was controversial because it ran contrary to the traditional understanding of how the burden of proof operates in discrimination claims, which is to place the initial burden on the Claimant to prove his case.

The Court of Appeal has now confirmed in Ayodele v Citylink Ltd that the initial burden of proof remains on the Claimant in discrimination claims and that the EAT in Efobi was wrong to hold otherwise.

Mr Ayodele, a black man from Nigeria, brought claims of discrimination on the grounds of race against his former employer, Citylink, following termination of his employment.  The employment tribunal found for Citylink because Mr Ayodele was unable to discharge the initial burden of proof and the EAT confirmed the tribunal’s decision.  Mr Ayodele appealed to the Court of Appeal on the basis that the judgment in Efobi was authority for the fact that the tribunal had incorrectly imposed an initial burden of proof on him to show a prima facie case of discrimination.

In dismissing Mr Ayodele’s appeal, the Court of Appeal determined that it must be for the Claimant to initially make his case, otherwise there would be nothing for the Respondent to respond to; it must be for the Claimant to show there is a case to answer.

Comment:      The judgment in Ayodele reaffirms the conventional view of how the burden of proof operates in discrimination claims.  It is helpful for respondents because it confirms that a tribunal cannot draw adverse inferences from a respondent’s failure to adduce evidence to show its actions were not discriminatory.