Daniel Dyal considers the latest decision of the Court of Appeal on the burden of proof.
It was 10.29 am on 10 August 2017 and all employment lawyers were sure they understood how the burden of proof provisions at s.136 Equality Act 2010 worked. It was all about Igen v Wong  ICR 931 with a dash of refinement from Madarassy v Nomura International  ICR 867 and a reminder not to get too excited about any of it from Hewage v Grampian Health Board  ICR 1054.
But then the clock struck 10.30 am and Laing J’s decision in Efobi v Royal Mail  IRLR 956 was handed down. It turned out that everything we thought we knew about the burden of proof was wrong, or more accurately no longer right. The wording of s.136 Equality Act 2010 differed from the wording of the legacy discrimination statutes (e.g. the Sex Discrimination Act 1975) and operated differently. Under the Equality Act, there was no burden on the Claimant at stage 1 at all and it was misleading to refer to a shifting burden of proof.
Efobi came as a bit of a shock to employment lawyers. One of them (me) described it in these pages as a “radical reconsideration of the burden of proof.” And so it was.
Over the summer Efobi gradually sank in. By the autumn we were all getting used to it. By November, Mickey Rubenstein had found space for it in the trusty IRLRs. So by at 10.29 am on 24 November 2017, Efobi felt like it was indeed ‘the law’.
Then the clock struck 10.30 am and the Court of Appeal handed down judgment in Ayodele v Citylink. Singh LJ, giving the judgment of the court, overruled Efobi and declared that Igen, Madarassy, Hewage and company in fact remained good law.
As the law now (re-)stands then: the Claimant does have the burden of proving a prima facie case at stage 1 and it is right to describe the burden of proof as ‘shifting’ if such a prima facie case is proven.
So… Orthodoxy has been restored. For the time being at least.
Daniel Dyal, 24.11.2017