The Supreme Court has held that the Equality Act did not alter the law on shift in burden of proof.

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 unless the person shows there was no contravention.

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 v Royal Mail Group in 2017 held that under the new Equality Act wording there is no initial burden on the claimant. However the Court of Appeal in Ayodele v Citylink overruled this later the same year, and the Supreme Court in Efobi bailii.org has now upheld the Ayodele decision.

Accordingly the Equality Act did not change the position. There is still an initial burden of proof on the claimant, but the change of wording makes 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.

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