Ayodele v Citylink Ltd & Anor

Equality Act 2010 section 136 preserves the substantive two-stage approach to proof in discrimination claims. At the first stage, the claimant must establish facts from which discrimination could be inferred. The tribunal may consider all material factual evidence, including evidence called by the respondent, when deciding whether the alleged treatment occurred and was less favourable.

It must not, at that stage, rely on the respondent’s explanation for otherwise discriminatory treatment. If the factual threshold is met, the respondent must prove that the treatment was not discriminatory. The altered wording of section 136 clarified that all factual evidence may be considered; it did not remove the claimant’s initial burden. The contrary interpretation in Efobi v Royal Mail Group Limited was wrong and should not be followed.

The claimant, a black man originally from Nigeria, resigned from employment with a logistics company in 2012. He brought claims including race discrimination, harassment, victimisation and constructive unfair dismissal. The Employment Tribunal dismissed the claims after considering eight complaints and finding, in substance, that poor management affected staff generally and that the claimant had not suffered less favourable treatment.

The Employment Appeal Tribunal refused reconsideration of the claimant’s paper-sifted appeal under rule 3(10) of the Employment Appeal Tribunal Rules 1993. The claimant appealed on the ground that the Tribunal had wrongly considered the respondents’ evidence at the first stage of the discrimination burden-of-proof inquiry. With permission, he also relied on Efobi v Royal Mail Group Limited, contending that section 136 imposed no initial burden on a claimant.

The central issue was the proper operation of section 136 of the Equality Act 2010.

1. Appeal dismissed unanimously. Singh LJ gave the judgment, with which Beatson and Davis LJJ agreed. The Employment Tribunal’s judgment had to be read fairly and as a whole. It was not to be treated as an examination answer in which isolated phrases established legal error.

2. The first-stage inquiry may involve three questions: whether the alleged act occurred; whether it was less favourable treatment; and, if so, whether the reason was discriminatory. The first two are factual matters. A tribunal may consider all the factual evidence, including evidence adduced by a respondent, in deciding them. It must, however, leave out an adequate explanation for treatment at that stage.

3. This distinction between facts and explanation was established in Laing v Manchester City Council [2006] ICR 1519 and approved in Madarassy v Nomura International plc [2007] IRLR 246. The Tribunal’s findings that the relevant conduct either had not occurred, was experienced by other staff, or was not less favourable treatment were findings open to it on all the evidence. It therefore had no need to reach the explanatory stage.

4. Section 136 of the Equality Act 2010 did not remove the claimant’s initial burden to establish a prima facie case. Its wording represented a legislative tidying-up exercise which made clear that the tribunal considers all the facts, whatever their source. It did not change the earlier law stated in Igen Ltd v Wong [2005] ICR 931, subsequently approved in Hewage v Grampian Health Board [2012] ICR 1054.

5. The interpretation of section 136 in Efobi v Royal Mail Group Limited (UKEAT/0203/16) was wrong and should not be followed. Once facts capable of supporting an inference of discrimination are established, section 136 requires the tribunal to find a contravention unless the respondent proves that it did not occur.

• Court of Appeal (Civil Division) Dismissed the claimant’s appeal: [2017] EWCA Civ 1913.
• Employment Appeal Tribunal On 1 August 2014, HHJ Peter Clark refused reconsideration under rule 3(10) of the Employment Appeal Tribunal Rules 1993; the appeal was consequently dismissed.
• Employment Tribunal, Cardiff On 29 October 2013, dismissed the claimant’s race discrimination claim and the associated complaints.