Burden of proof in equality claims
Burden of proof in equality claims

The following Employment guidance 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
  • Stage 2

The statutory burden of proof test

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

The process does not apply to proceedings for any criminal offence under the Act.

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 the 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 other explanation, that the respondent had contravened the EqA 2010. Since the claimant carries the initial burden of establishing a prima facie