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.