Proving discrimination - a return to orthodoxy

Ayodele v Citylink Ltd

The Court of Appeal has restored what until recently was seen to be the orthodox approach to proving discrimination, i.e. the burden of making out a prima facie case remains on a claimant.


Overturning accepted orthodoxy as to the correct approach, the EAT in August 2017 held (in Efobi v Royal Mail) that employees don’t have to establish a prima facie case of discrimination before the burden of proof shifts to the employer. What a tribunal must do, said the EAT, was consider all the evidence, from all sources, at the end of the hearing, to decide whether there are ‘facts’ from which it can conclude that discrimination occurred and, if so, it must so find unless the employer can discharge the burden on it.

This case involved a Nigerian man, Mr Ayodele, who brought various claims against his employer, including ones of racial discrimination. A tribunal dismissed his discrimination claims on the basis that he hadn’t established prima facie evidence of less favourable treatment and therefore the burden of proof had not shifted to the employer. His appeal to the EAT was dismissed. In the Court of Appeal, Mr Ayodele argued, relying on the decision in Efobi, that the tribunal had got it wrong regarding the burden of proof (under s. 136 of the Equality Act).

Court of Appeal decision

Mr Ayodele’s appeal was dismissed. Much of the court’s reasoning centred on the difference in statutory wording between s. 136 and its predecessor in the various equality Acts relating to the burden of proof (a factor which influenced the EAT in Efobi). The wording is different in s. 136 in that this section doesn’t make explicit reference to the need for a claimant to prove facts.

The Court of Appeal held that the change in the wording did not mean that a claimant did not have to prove facts from which an inference of discrimination could be drawn, before the burden shifted to the employer to provide a non-discriminatory explanation. In a discrimination case, before a tribunal can start making an assessment, the claimant has got to start the case, otherwise there is nothing for the employer to address and nothing for the tribunal to assess. The Court of Appeal could see no reason why an employer should have to discharge the burden of proof unless and until the claimant has shown a prima facie case of discrimination that needs to be answered. There is therefore nothing unfair about requiring a claimant to bear the burden of proof at the first stage. The Court of Appeal held that the change in wording made no substantive change to the law and should be seen simply as a legislative ‘tidying up’ exercise. The interpretation of s. 136 by the EAT in Efobi was therefore wrong and should not be followed.

Link to judgment:


Following the EAT’s decision in Efobi, it had been thought that this would make it much easier for claimants to succeed in bringing discrimination claims. The Court of Appeal’s decision now restores the position which most practitioners were well acquainted with and generally considered to strike the right balance between employees and employers in discrimination cases. The Court of Appeal has since followed this decision in rejecting the appeal in Efobi.