Where does the burden of proof lie in discrimination cases? A recent Court of Appeal case debates this question

According to the Court of Appeal, a claimant in a discrimination case must prove the facts on the inference of discrimination before the burden moves to the respondent.
This case changes the burden of proof of discrimination in employment claims, to the position in place before the Equality Act 2010 came into force. At the point of the Equality Act coming into place, it was said that the “burden of proof” was on the employer to demonstrate that discrimination had NOT occurred, not on the employee to prove that it had. The critical question in this case arose after the judges were asked to reconsider the law on who carries the burden. They found that the change of wording in section 136(2) of the Equality Act 2010 from previous discrimination legislation meant that the burden of proof had changed.

The employee in this case was originally from Nigeria and described himself as black. He was employed as a warehouse operative, initially through an agency. He resigned in October 2012 in response to a repudiatory breach of his employment contract, claiming constructive dismissal, racial discrimination, racial harassment and victimisation.

As some of his complaints dated back to the time when he began employment, the case straddled the date when the Equality Act came into force. This meant the employment tribunal had to consider that Act and the law in place before the Act – ie the Race Relations Act 1976.

After considering the wording in both pieces of legislation, the Court of Appeal’s judgment confirms that there is a burden of proof on the claimant and that the Equality Act 2010, while worded differently from its predecessor legislation, does not change this to place the burden on the employer. This is likely to cause significant impact on discrimination cases waiting to be heard.

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