Burden of proof in equality claims

The following Employment practice note provides comprehensive and up to date legal information covering:

  • Burden of proof in equality claims
  • The statutory burden of proof test
  • Overview of the two-stage test
  • Stage 1
  • Whether the claimant has shown a prima facie case
  • Approach tribunal should take—summary
  • Where stereotypical assumptions have been made
  • Where significant number of discriminatory acts alleged
  • Where employer fails to call decision-makers as witnesses
  • Stage 2

Burden of proof in equality claims

This Practice Note considers the two-stage statutory burden of proof test which applies to all prohibited conduct (ie discrimination) and equality of terms (ie equal pay) claims under the Equality Act 2010 (EqA 2010), but not to criminal offences.

The statutory burden of proof test

EqA 2010 prescribes a two-stage process for dealing with the burden of proof. It applies to any proceedings relating to a contravention of EqA 2010, including a breach of an equality clause or rule.

The process does not apply to proceedings for any criminal offence under EqA 2010.

Overview of the two-stage test

Stage 1—the tribunal must consider if there are facts from which it could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned.

Stage 2—if stage 1 is satisfied, the tribunal must hold that the contravention occurred, unless A shows that A did not contravene the provision.

In Ayodele and Efobi, the Court of Appeal held that in claims under EqA 2010, the burden of proof is on the claimant initially to prove facts which could establish that an act of discrimination has occurred. However, at stage 1 the employment tribunal is required to consider all the evidence, not just the claimant’s evidence, when deciding whether or not there are facts from which facts it could decide, in the absence of any

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