Ayodele v Citylink Ltd

The Court of Appeal dismissed the appellant's challenge to the Employment Appeal Tribunal's refusal to allow reconsideration of an appeal from an Employment Tribunal which had dismissed claims of racial discrimination, harassment, victimisation and unfair dismissal. The court reaffirmed the established two-stage burden of proof approach as explained in Igen Ltd v Wong and subsequent authorities: a claimant must establish facts from which a tribunal could, in the absence of an adequate explanation, conclude that discrimination occurred (a prima facie case), and only then does the burden shift to the respondent to provide an adequate non-discriminatory explanation. The court accepted that tribunals may consider all primary facts from both parties when deciding whether a prima facie case exists, but emphasised the distinction between primary facts and an "explanation". It rejected the EAT decision in Efobi insofar as it was treated as removing any initial burden on claimants under section 136 of the Equality Act 2010, holding that section 136 should be read consistently with prior case law and does not abolish the claimant's initial obligation in substance.

Background and parties:

• The appellant, Mr Ayodele, a black man originally from Nigeria, brought claims against his employer Citylink Limited (first respondent) and his team manager Paul Napier (second respondent) arising from the end of his employment in October 2012.
• Before the Employment Tribunal (Cardiff) he alleged racial discrimination, racial harassment, victimisation and constructive unfair dismissal. The ET dismissed the claims by a decision sent to the parties on 29 October 2013.

Procedural posture:

• The appellant applied for reconsideration at the ET; that application was refused on 12 January 2014. An attempt to bring the appeal to the Employment Appeal Tribunal was initially rejected on paper (1 May 2014) and a request for oral reconsideration under rule 3(10) of the EAT Rules was refused by HHJ Peter Clark on 1 August 2014, which resulted in the appeal being treated as dismissed. Permission to appeal to the Court of Appeal was granted by Bean LJ (order sealed 23 July 2015) on one ground; the Court of Appeal also permitted a supplementary ground based on a later EAT decision (Efobi) to be argued.

Nature of relief sought:

• The appellant sought to overturn the EAT decision refusing reconsideration and to challenge the ET's legal approach to the burden of proof in discrimination claims, with the ultimate objective of remitting the substantive discrimination claims to a differently constituted ET.

Issues framed by the Court:

1. Whether the ET erred in law by considering evidence put forward by the respondents at the first stage of the burden of proof analysis and by misdirecting itself about the claimant's initial burden to establish a prima facie case of discrimination.
2. Whether the EAT decision in Efobi, holding that section 136 of the Equality Act 2010 places no initial burden on a claimant, represents the correct interpretation of section 136 and so required overturning prior authority.

Court's reasoning and disposition:

• The Court read the ET judgment as a whole and concluded the ET had made findings of fact based on all the evidence when deciding whether each alleged act occurred and whether there was less favourable treatment in comparison with relevant comparators. The court accepted that tribunals may properly take into account factual evidence from respondents when determining whether the claimant has established the factual foundation for a prima facie case, but reiterated the important legal distinction between primary facts and an respondent's "explanation" for them.
• The Court held that prior authorities (including Igen, Laing, Madarassy and Hewage) remain good law and that section 136 should be read consistently with them. It rejected the interpretation in Efobi that section 136 removes any initial burden on claimants, concluding the difference in statutory wording was a legislative clarification that tribunals may consider all primary facts from both parties at the first stage, not a change removing the claimant's initial obligation to establish facts capable of giving rise to an inference of discrimination.
• Accordingly the Court dismissed the appeal and refused the remittal sought by the appellant.

Wider context noted: the court observed that any change to remove the claimant's initial burden would be a significant departure from established domestic and EU-influenced practice and there was no material in the legislative history or commentary suggesting Parliament intended such a change.

The appeal was dismissed. The Court held that the Employment Tribunal did not err in law in its approach to the burden of proof and in considering the primary facts from all evidence when deciding whether a claimant had established a prima facie case of discrimination. The Court reaffirmed the two-stage burden of proof approach in discrimination claims (claimant must establish facts capable of supporting an inference of discrimination; then the burden shifts to the respondent to give an adequate non-discriminatory explanation) and rejected the EAT decision in Efobi insofar as it was taken to eliminate the claimant's initial burden under section 136 of the Equality Act 2010.

Employment Tribunal (Cardiff) dismissed the claimant's racial discrimination, harassment, victimisation and unfair dismissal claims (decision sent 29 October 2013). Application for reconsideration to the ET refused 12 January 2014. EAT paper sift rejected the appeal (letter 1 May 2014); oral reconsideration under rule 3(10) refused by HHJ Peter Clark on 1 August 2014. Permission to appeal to the Court of Appeal granted by Bean LJ (order sealed 23 July 2015). Appeal heard in the Court of Appeal (judgment 24 November 2017).