First stage burden

Contrary to a recent appeal tribunal decision, the Court of Appeal has held in Ayodele v Citylink that claimants must bear the burden of proof at the first stage of a discrimination claim. It is only if the tribunal can draw an inference of discrimination at that point that the burden will pass to the respondent (in other words, the employer).

Basic facts

Mr Ayodele, who was born in Nigeria, started work for Citylink in 2007 as a warehouse operative. In October 2012 he resigned and claimed constructive dismissal in response to an alleged repudiatory breach of his contract of employment by the company.

He lodged a number of tribunal claims including racial discrimination, racial harassment, victimisation and unfair dismissal. For instance, he alleged that his line manager did not speak politely to him; that he was expected to go to work even when he was ill; that there were often delays in getting paid; his annual leave requests were ignored; and that his line manager kept removing him from the customer service desk.

Decisions of tribunal and EAT

Dismissing his discrimination claims, the tribunal held that Mr Ayodele had failed to establish prima facie evidence of less favourable treatment as it was clear from the facts that the company treated everyone in much the same way. As such, the tribunal could not move onto the second stage of the process which would have required the company to establish on the balance of probabilities that it had not committed the alleged act/s of discrimination.

The EAT rejected his appeal. He appealed again to the Court of Appeal on the basis that the tribunal was wrong to take account of evidence produced by the company at the first stage of the analysis; and, secondly, that it was wrong in law, following the EAT decision in Efobi v Royal Mail (LELR 539), to hold that the initial burden of proof to show discrimination rested with the claimant. Instead, the tribunal should have considered all the evidence at the end of the hearing and then decided whether or not there were facts from which it could infer discrimination. 

Decision of Court of Appeal

Dismissing the appeal, the Court of Appeal held that the interpretation of the law in Efobi was wrong and should not be followed. Instead of considering all the evidence at the end of the hearing as the judge said in Efobi, all the evidence should be considered by the tribunal at the first stage of the hearing. If it was possible to draw an inference of discrimination at that first stage, it followed that the claim would succeed unless the respondent discharged the burden of proof at the second stage.

Otherwise, as the Court of Appeal pointed out, respondents would have to discharge the burden of proof despite the fact that the claimant had not shown that there was a prima facie case of discrimination which needed to be answered. As such “there is nothing unfair about requiring that a claimant should bear the burden of proof at the first stage. If he or she can discharge that burden (which is one only of showing that there is a prima facie case that the reason for the respondent's act was a discriminatory one) then the claim will succeed unless the respondent can discharge the burden placed on it at the second stage”.