Burden of proof – already back to the way it was!
As employment lawyers, we are very used to keeping up to date with ever-changing case law. However even so, it is still fairly unusual for me to need to write an article in December about the reversal of a decision I wrote about only in August! My August article is here and was about the case of Efobi v Royal Mail, where the Employment Appeal Tribunal’s decision reversed the long-established position about the burden of proof in discrimination cases (which some had described as ‘guilty until proven innocent’ for employers).
Employers will be relieved to hear that the Court of Appeal (in the case of Ayodele v Citylink (2017)) has now concluded that the Efobi case was wrongly decided and therefore the burden of proof rules should revert to how they had been interpreted previously.
In Ayodele, Court of Appeal found that (as had been previously thought) under the Equality Act generally the burden of proof is on the Claimant to establish a basic case, and if that basic case is established, the burden of proof moves to the Respondent to disprove discrimination. However, the judgment did emphasise that a flexible approach is needed, so rigid adherence to burden of proof rules may not necessarily be appropriate. In many discrimination cases, the burden of proof will not be a significant factor, and it is important for it not to be the sole focus.
Before the Ayodele judgment was issued, an appeal had been made in the Efobi case. However, given the Court of Appeal’s ruling, it is not clear what will happen about that appeal now. We will of course keep you informed about any further developments.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or enquiries@pureemploymentlaw.co.uk).