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No initial burden on claimant to prove discrimination occurred

Makbool Javaid

In Efobi v Royal Mail Group Ltd, Efobi (E) claimed that his job applications were rejected because of his race. The ET said that under S.136 of the Equality Act 2010 E had to prove facts from which it could conclude that there had been discrimination. But, as he had failed to do so, his discrimination claims were dismissed. The EAT upheld E’s appeal. The ET had misdirected themselves about the effect of S.136 EA 2o10 by treating it as imposing an initial burden of proof on the Claimant. That may have been the case with the burden of proof prior to the EA 2010 coming into force, but S.136(2) does not put any burden on a Claimant.  It says, “If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.” Therefore, at the end of the hearing the ET must consider all the evidence, from all sources, and then decide if the ‘facts’ point towards discrimination having taken place.

This update provides summary information and comment on the subject areas covered. Where employment tribunal and appellate court cases are reported, the information does not set out all of the facts, the legal arguments presented and the judgments made in every aspect of the case. Click on the links to access full details. If no link is provided, contact us for more information.  Employment law is subject to constant change either by statute or by interpretation by the courts. While every care has been taken in compiling this information, SM&B cannot be held responsible for any errors or omissions. Specialist legal advice must be taken on any legal issues that may arise before embarking upon any formal course of action.

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