The Court of Appeal has reversed an EAT decision which previously held that a change of wording in the Equality Act had altered the law on shift in burden of proof.
Essentially the new Court of Appeal decision in Ayodele v Citylink bailii.org says the law on shift in burden of proof is what it was always thought to be, before the EAT’s decision in Efobi last August.
Under s.136 Equality Act 2010, if there are facts from which the court could decide, in the absence of any other explanation, that a person (eg an employer) contravened the Act. the court must hold that the contravention occurred.
Wording in legislation prior to 2010 made it clearer there was supposed to be an initial burden of proof on the claimant to show facts sufficient to shift the burden of proof to the employer. The EAT in Efobi last August held that under the new Equality Act wording there is no initial burden on the claimant. However the Court of Appeal in Ayodele has now overruled this, saying the new Equality Act wording was not intended to change the law, and there is still an initial burden of proof on the claimant.
The Court of Appeal said the change of wording is to make clear (as had already been held by the courts) that in deciding whether there are sufficient facts to shift the burden of proof the tribunal should consider all the evidence, from whatever source, and not only the evidence adduced by the claimant.
More: EqA shift in burden of proof.