Prior to S.136 of the Equality Act 2010, UK anti-discrimination legislation reflected the burden of proof wording in EU Directives, i.e. a claimant first has to establish facts from which it may be presumed that there has been discrimination and it is then for the respondent to prove otherwise. S.136 starts with: “If there are facts from which the court could decide …”. The EAT in Efobi v Royal Mail held this meant that the burden should no longer be imposed on a claimant at the first stage as it is for the ET to determine if the ‘facts’ point towards discrimination. The Court of Appeal in Ayodele v Citylink Ltd and anor have ruled that the EAT in Efobi was wrong. The S.136 wording is a “tidying up” exercise making it clear that what should be considered at the first stage is ‘all’ the evidence, and not just the claimant’s. The EU Directives place an initial burden on the claimant, as does the guidance in para. 15.32 of the EHRC Employment Code, and a respondent should not have to discharge a burden of proof unless a claimant has shown that there is a prima facie case of discrimination which needs to be answered.

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