Court of Appeal reaffirms correct approach to proving direct discrimination

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    Ayodele v Citylink Ltd and another [2018] IRLR 114 CA (0 other reports)

Ayodele v Citylink Ltd and another [2018] IRLR 114 CA

race discrimination | direct discrimination | burden of proof

The Court of Appeal has held that the rules on the burden of proof in discrimination claims under the Equality Act 2010 do not differ from the rules under the previous discrimination legislation, and that the initial burden remains on the claimant.

Implications for employers

This judgment restores the correct approach that tribunals and courts must follow when determining discrimination claims. The initial onus is on the claimant because he or she must prove facts from which an inference of discrimination can be made before that burden shifts to the employer.

The previous decisions, such as Igen Ltd (formerly Leeds Careers Guidance) and others v Wong and other cases [2005] IRLR 258 CA, remain good law and Efobi v Royal Mail Group Ltd [2017] IRLR 956 EAT should not be followed.

Mr Ayodele was employed by Citylink as a warehouse operative. In October 2012, he resigned and he claimed that he had been constructively dismissed.

Mr Ayodele brought various claims in the employment tribunal, including a claim for direct race discrimination. He complained that he had been subjected to continuing race discrimination from the outset of his employment in 2007. This meant that, in determining Mr Ayodele's claim, the tribunal was required to consider the terms of the Equality Act 2010 and its predecessor, the Race Relations Act 1976.

The tribunal found that, although Mr Ayodele had been subjected to poor treatment, he was not the only employee to suffer difficulties because there was a "universality of this treatment towards staff".

After setting out its findings of facts, the tribunal considered the approach it should adopt to the burden of proof in discrimination cases. The tribunal examined s.136 of the Equality Act 2010, and s.54 of its predecessor, the Race Relations Act 1976, by reference to the reasoning in Igen Ltd (formerly Leeds Careers Guidance) and others v Wong and other cases [2005] IRLR 258 CA, Barton v Investec Henderson Crosthwaite Securities Ltd [2003] IRLR 332 EAT and Madarassy v Nomura International plc [2007] IRLR 246 CA. The tribunal concluded that a claimant must prove facts from which an inference of discrimination could be drawn before the burden shifts to the employer to establish, on the balance of probabilities, that it did not commit an unlawful act of discrimination.

The tribunal held that Mr Ayodele had not established prima facie evidence of less favourable treatment and therefore the burden of proof had not shifted to Citylink. The tribunal dismissed Mr Ayodele's claim.

Mr Ayodele appealed to the Employment Appeal Tribunal (EAT). The EAT refused to consider Mr Ayodele's appeal on the ground that it had "absolutely no prospect of success".

Mr Ayodele appealed the EAT's rejection of his appeal to the Court of Appeal.

The Court of Appeal allowed the appeal to proceed on limited grounds. The main issue for the Court was whether or not the tribunal had correctly applied the burden of proof provisions.

In the Court's view, the tribunal had been entitled to find that there was no less favourable treatment of Mr Ayodele compared with other members of staff. The Court said that the tribunal had correctly decided that the burden of proof in the first stage is on the claimant and that, in this case, it had not shifted to Citylink because Mr Ayodele had not proven facts from which an inference of discrimination could be made.

The Court of Appeal acknowledged that the EAT in Efobi v Royal Mail Group Ltd [2017] IRLR 956 EAT had decided that s.136 of the Equality Act 2010 "does not impose a burden of proof on the claimant at all". However, the Court concluded that the interpretation placed on s.136 by the EAT in Efobi is wrong and should not be followed for the following reasons:

  • The claimant must start the case, otherwise there is nothing for the employer to address and nothing for the tribunal to assess.
  • For reasons of fairness, an employer should not have to discharge the burden of proof unless or until the claimant has shown that there is a prima facie case of discrimination that needs to be answered.
  • There is no reason "to suppose that the mischief that Parliament was addressing in enacting s.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".
  • The difference of wording between s.136 and its predecessor provision in s.54 of the Race Relations Act 1976 (and its "sibling" provisions in s.63A of the Sex Discrimination Act 1975 and s.17A of the Disability Discrimination Act 1995) should be regarded as no more than a legislative "tidying up" exercise. It was not intended to change the law and certainly not as interpreted in Efobi.

Before dismissing the appeal, the Court of Appeal confirmed that the previous decisions of the Court, such as Igen, Barton and Madarassy, remain good law and should continue to be followed.

Case transcript of Ayodele v Citylink Ltd and another