Employmentbuddy - Your best buddy in human resources

Claimants no longer need to “shift the burden of proof” in discrimination claims

18 August 2017 #Employment Tribunals

Section 136 of the Equality Act 2010 is headed “the burden of proof”. It has long been considered that in discrimination cases the claimant has to show a ‘prime facie’ case for discrimination before the burden shifts to the respondent to show that its actions were not discriminatory.  This essentially means that the claimant must present facts that, in the absence of any other explanation, could suggest discrimination. 

However, the EAT in Efobi v Royal Mail Group has decided that this approach is incorrect. It said that the Equality Act does not place any initial burden on the claimant and that it is for the Tribunal to consider all evidence, from all sources at the end of the hearing before deciding if there has been a contravention.  

This decision is a significant diversion from the conventional wisdom but it is not clear yet what difference it will make in practice to claims.  The claim did also highlight the risk respondents face if they fail to adduce evidence on matters within their own knowledge (in this case those accused of wrongdoing were not called) with the EAT stating that the Tribunal may draw adverse inferences in such situations.

This information is for guidance purposes only and should not be regarded as a substitute for taking professional and legal advice. Please refer to the full General Notices on our website.


Be the first to comment on this blog.

Leave your comments
Your comments will be published after being approved by employmentbuddy team, displaying your name as you provide it. But your contact details will never be published. Please read our terms and conditions.

Louise Merrell

Louise Merrell

E: lmerrell@clarkslegal.com
T: 020 7539 8082
M: 0779 900 7325