Ayodele v Citylink Ltd  EWCA Civ 1913
The Court of Appeal has ruled that claimants still bear an initial burden of proof under the Equality Act 2010 (“EA 2010”), despite the change in wording in s. 136 as compared with the pre-EA legislation. In coming to this conclusion, the Court ruled that the interpretation placed on that section by the EAT in Efobi v Royal Mail Group Limited (UKEAT/0203/16, 10 August 2017) was wrong, and should not be followed.
The Court also considered the distinction between matters of fact and explanation for the purposes of applying s. 136 EA 2010.
The burden of proof
S.136(2) states that:
“If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.” [Emphasis added]
This contrasts with the pre-EA legislation, which stated that:
“Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could … conclude in the absence of an adequate explanation that the respondent – (a) has committed such an act of discrimination … the tribunal shall uphold the complaint unless the respondent proves that he did not commit … that act.” [Emphasis added]
In Efobi, this change in wording led Elisabeth Laing J to conclude that s. 136(2) no longer imposes any burden of proof on the claimant. Instead:
“It requires the ET … 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 such facts, and no explanation from [the employer], the ET must find the contravention proved.” 
This judgment had significant ramifications for all discrimination claims under the EA 2010. If correct, the guidance in the leading case of Igen Ltd v Wong  ICR 931 would need to be amended, to bring it up-to-date for the introduction of the EA 2010.
However, in Ayodele, Lord Justice Singh (with whom Davis and Beatson LJJ agreed) has ruled that Efobi was wrong and that a claimant still bears an initial burden of proof under s. 136. In this respect, that section has not effected any change to the pre-EA legislation, and the guidance in Igen is still good law. The Court gave 4 reasons for its conclusion.
First, as a matter of practice:
“Before a tribunal can start making an assessment, the claimant has got to start the case, otherwise there is nothing for the respondent to address and nothing for the tribunal to assess.” 
Second, as a matter of fairness:
“I can see no reason in fairness why a respondent should have to discharge that burden of proof unless and until the claimant has shown that there is a prima facie case of discrimination which needs to be answered.” 
Third, as a matter of statutory interpretation:
“… there is no reason to suppose that the mischief that Parliament was addressing in enacting section 136 was that the previous legislation, as interpreted by this Court in Igen and as applied by tribunals ever since, had caused any difficulties which made it appropriate to remove the burden of proof from a claimant at the first stage of the enquiry …” 
Fourth, as a matter of EU law:
“It is also of some significance that the EU Directive to which section 136 gives effect in domestic law does not require there to be no burden on a claimant at the first stage …” 
Fact or explanation
The Court also approved and applied the distinction between “fact” and “explanation” for the purposes of s. 136 EA 2010.
That section makes clear that, at the first stage of its analysis, when considering whether a claimant has established a prima facie case of discrimination, the Court must not take account of any explanation for the employee’s treatment offered by the employer. However, Singh LJ ruled that a Tribunal may take account of any matters of fact, even if those matters arise out of evidence adduced by the employer (at ).
The Court also ruled that there may be (at least) 3 questions for a Tribunal in any discrimination claim, and that it is only if the Tribunal reaches the third question that it may have to consider the employer’s explanation:
“62. … there may be cases in which there are at least the following three issues which arise in respect of any specific complaint of discrimination:
(1) Did the alleged act occur at all?
(2) If it did occur, did it amount to less favourable treatment of the claimant when compared with others?
(3) If there was less favourable treatment, what was the reason for it? In particular, was that reason discriminatory?
- Accordingly, there may be cases in which the tribunal never has to address question (3), because it is not satisfied that it has been proved on the evidence that the alleged act took place at all; or it may not be satisfied that there was less favourable treatment.”
Ronnie Dennis acted for the Appellant.