The Court of Appeal has restored the burden of proof test in discrimination cases meaning that claimants will bear the initial burden.

burden of proof

The individual, in this case, was engaged as an agency worker and then as an employee. He resigned after several years. He then brought tribunal claim claiming constructive unfairly dismissed, racial discrimination, racial harassment and victimisation. His discrimination allegations included, amongst others, the way his line manager spoke to him, delays in being paid, the way his annual leave requests were handled, and being removed from a customer service desk.

The tribunal dismissed his claims. In relation to discrimination the tribunal held that he had not established a prima facie case. He unsuccessfully appealed to the Employment Appeal Tribunal.

He then appealed to the Court of Appeal.

His argument that the tribunal shouldn’t have taken into account the employer’s explanations at the first stage of the burden of proof test was dismissed. The Court said that it is permissible to take into account evidence presented by the respondent when considering whether the claimant has proved facts demonstrating a prima facie case of discrimination. In this case the evidence showed that, for example, many other employees experienced difficulties with being paid. He had therefore failed to prove facts from which the tribunal could decide that discrimination had occurred.

Burden of proof is initially on the Claimant

In relation to a second ground of appeal, that the tribunal wrongly placed any burden of proof on him, the court said that there was nothing to indicate that Parliament had intended to alter the burden of proof when it passed the Equality Act 2010.

Case reference: Ayodele v Citylink Limited