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The EAT decision in Efobi will, if upheld, make it easier for tribunals to hold there are sufficient facts for the burden of proof to be on the employer to show there was no unlawful discrimination.

It had been thought that the Equality Act 2010 continued the position under previous legislation – that for the burden of proof to shift to the employer under s.136 EqA, the claimant must prove facts from which the court could decide in the absence of other explanation that there was unlawful discrimination.

The EAT in Efobi v Royal Mail Group, EAT, 2017 www.bailii.org/uk/cases/UKEAT/2017/0203_16_1008.html has held this is not correct. The wording of the Equality Act is different from previous legislation and, according to the EAT, this changes its meaning. S.136 does not put an initial burden of proof on the claimant, said the EAT. S.136 requires the tribunal 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’. If there are, then the burden of proof is on the employer to show there was no unlawful discrimination.

The case brings out particularly that a tribunal may draw adverse inferences from the employer failing to bring evidence which is within its knowledge, without explanation.

It remains to be seen whether the decision will be upheld in future cases.

More: EqA shift in burden of proof.

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