The Court of Appeal has held the burden of proof showing a prima facie case of discrimination under s.136 Equality Act 2010 in GB remains on the claimant.

The claimant originated from Nigeria. He brought several claims before the Tribunal including a claim of race discrimination. The Tribunal held the claimant failed to establish a prima facie case and therefore the burden of proof had not transferred to the respondent.

The EAT dismissed his appeal. The claimant brought a new ground of appeal before the Court of Appeal stating the Tribunal had made a significant error in applying the burden of proof under s.136. The claimant alleged the Tribunal had misdirected itself by finding the onus was on the claimant at the initial stage of the enquiry and therefore erred in judgment.

The Court of Appeal dismissed the appeal. The Tribunal had clarified its role, stating it was not appropriate for it to refer to the burden of proof on either side and that its main objective was to evaluate the case. Ordinarily, a claimant will initiate proceedings in order for the respondent to address and respond to any allegations and in order for the Tribunal to assess and determine the outcome.

The Court of Appeal held it could 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.

“It seems to me that there is nothing unfair about requiring that a claimant should bear the burden of proof at the first stage. If he or she can discharge that burden (which is one only of showing that there is a prima facie case that the reason for the respondent's act was a discriminatory one) then the claim will succeed unless the respondent can discharge the burden placed on it at the second stage”.

The Court emphasised the legislative purpose of s.136 was not to remove the burden of proof from the claimant. The change of wording from prior provisions simply confirmed that all the evidence should be considered at the first stage.

The Court concluded the judgment in Igen v Wong remains good law, however it stressed the interpretation of s.136 by the EAT in Efobi was wrong and should not be followed. As pointed out in our previous review of Efobi, which did not apply in NI, Igen also applies in Northern Ireland.
http://www.bailii.org/ew/cases/EWCA/Civ/2017/1913.html