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Employment Law Speed Read – 04/12/17

This week we look at a case which has seen a return to the burden of proof principle in discrimination cases.

Ayodele v Citylink Ltd & Anor

The decision of the Court of Appeal (CA) in Ayodele v Citylink Ltd & Anor has reversed the decision of the Employment Tribunal in Efobi v Royal Mail Group Limited. The CA has restored the earlier position by holding that in discrimination claims, the Claimant does have the initial burden of proof of showing a prima facie case of discrimination.


Mr Ayodele (A) worked as a warehouse operative at Citylink Limited’s distribution depot in Swansea until he resigned in October 2012.

A claimed he had been constructively dismissed and also brought claims in the Employment Tribunal (ET) for racial discrimination, racial harassment and victimisation.

The ET dismissed the eight separate complaints raised by A on the basis that he had not established prima facie evidence of less favourable treatment, despite the findings of undesirable conduct on behalf of the Respondent. This was because the Respondent’s treatment towards staff was universal.

A appealed to the Employment Appeal Tribunal (EAT). The EAT refused the appeal on the grounds that the ET had considered each individual complaint in detail and had looked at the accumulation of evidence which did not persuade them that A had been subject to  discrimination.

Court of Appeal

A appealed on two grounds. Firstly, the ET had erred in law when it found that the burden of proof had not shifted to the Respondents because of the fact that there was a universality of undesirable treatment towards staff.

Secondly, in light of the decision in Efobi, it was argued that the ET failed to properly apply section 136(2) of the Equality Act 2010, by wrongly placing the burden of proof on the Claimant.

The CA rejected the first ground of appeal, stating that: ‘the ET did not impermissibly take into account anything that it should not have done in this context. All it was doing was making findings of fact based on all the evidence before it.’

The CA also rejected the second ground of appeal, stating that: ‘before a tribunal can start making an assessment, the claimant has got to start the case’. The CA went onto say ‘there is nothing unfair about requiring that a claimant should bear the burden of proof at the first stage.’

Accordingly, the appeal was dismissed.


The CA’s departure from the Efobi decision is significant, and restores the long-established burden of proof principle. The return to the orthodox position will be welcomed by employers as it ensures that the Respondents only need to discharge the burden of proof where the Claimant has shown that a prima facie case of discrimination needs to be answered.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.

Please note that this briefing is designed to be informative, not advisory and represents our understanding of English law and practice as at the date indicated. We would always recommend that you should seek specific guidance on any particular legal issue.

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