Burden of proof - as you were

The Court of Appeal has again reiterated that, where proving discrimination is concerned, the legal burden falls on the employee to show, as a first step, that there are facts from which a tribunal could conclude on the balance of probabilities, absent any explanation, that the alleged discrimination had occurred.

Only if he or she can show this, does the onus shifts to the employer to give an explanation for the alleged discriminatory treatment and to satisfy the tribunal that it was not tainted by a relevant protected characteristic e.g. sex or race.

The case is Efobi v Royal Mail Group Ltd where the Court of Appeal allowed an appeal against the decision on the EAT which had turned the accepted orthodoxy on its head.

The result of the appeal in Efobi is possibly not surprising as the legwork had already been done in the previous Court of Appeal decision in Ayodele v Citylink Ltd which had held that the reasoning of the EAT in Efobi was incorrect.