The Burden of Proof

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Is it true that by s.136(2) Equality Act 2010 the burden is on the claimant to prove facts before the burden then shifts to the respondent?

In Efobi v Royal Mail Group Ltd the EAT held that this was not the case.

Here the claimant, a postman, had applied for around 30 alternative jobs within the Royal Mail and had been unsuccessful in all his applications. The claimant complained that he had been rejected due to his race.

The EAT held that there is no burden on claimants to prove facts from which a tribunal could decide that the respondent has discriminated: “Section 136(2) … requires the ET, instead, to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not ‘there are facts etc’ … It may therefore be misleading to refer to a shifting of the burden of proof, as this implies, contrary to the language of section 136(2), that Parliament has required the claimant to prove something…”

This is a change from normal interpretation of the burden of proof in previous cases (e.g. Igen v Wong). It is worth noting, however, that such cases interpreted the burden of proof provisions in predecessor legislation (e.g. the Sex Discrimination Act) and these are worded differently to the Equality Act 2010.

Written by

Lorraine Emery
18th August 2018