(1)This section applies to any proceedings relating to a contravention of this Act.
(2)If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3)But subsection (2) does not apply if A shows that A did not contravene the provision.
(4)The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.
(5)This section does not apply to proceedings for an offence under this Act.
(6)A reference to the court includes a reference to—
(a)an employment tribunal;
(b)the Asylum and Immigration Tribunal;
(c)the Special Immigration Appeals Commission;
(d)the First-tier Tribunal;
(e)the Education Tribunal for Wales ;
(f)[F154 the First-tier Tribunal for Scotland Health and Education ChamberF154] .
Cases considering section 136 206
[2021] UKSC 33 · 23 July 2021Interprets
The court held that this provision preserved the established two-stage burden of proof. Its revised language clarified that the tribunal considers facts proved from every source, while retaining the claimant’s initial burden and the respondent’s second-stage burden. (see paras [24]-[34])
The claimant must prove on the balance of probabilities facts sufficient to permit an inference of discrimination absent another explanation. The tribunal considers facts proved by either party but disregards the respondent’s explanation. The subsection does not generally prohibit dismissal at the close of a plainly hopeless claimant’s case. (see paras [26]-[34]; [37]; [40])
Once sufficient primary facts exist, the respondent must show that no contravention occurred, including by proving that the protected characteristic played no part in the treatment. (see paras [5]; [14]; [30])
[2015] UKSC 15 · 11 March 2015Interprets
Once facts exist from which discrimination could be found, the landlord must disprove the contravention or establish proportionate justification. The statutory burden cannot be displaced by presumptions developed for article 8 claims (see paras [19]; [33]-[34]; [55]).
The burden-of-proof regime applies to proceedings relating to a contravention of the Act, including a discrimination defence to possession (see para [19]).
Facts capable, without another explanation, of supporting a finding of discrimination trigger a finding unless the landlord answers the case (see paras [19]; [34]).
The landlord may avoid the statutory inference by proving that it did not contravene the relevant provision, including by establishing proportionate justification (see paras [19]; [34]).
[2025] EWCA Civ 1390 · 5 November 2025Interprets
The claimant had to establish primary facts from which unlawful discrimination could be inferred; assertions and irrelevant evidence were insufficient. (see paras [52]-[54], [66])
The initial burden requires facts from which the court could decide, absent another explanation, that the statutory contravention occurred. (see paras [52]-[54])
186 more judgments, and what each says about section 136, are in the
case-law panel in the full Act.
443.This section provides that, in any claim where a person alleges discrimination, harassment or victimisation under the Act, the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act. The exception to this rule is if the proceedings relate to a criminal offence under this Act.
444.Under previous legislation, in most cases the burden of proof was reversed once the claimant had established a case to an initial level. However, the burden of proof was not previously reversed in race discrimination claims brought because of colour and nationality; claims of victimisation which related to race discrimination; non-work disability discrimination claims; and sex discrimination claims which related to the exercise of public functions. In these areas the burden of proof is now reversed once the claimant establishes his or her case to an initial level.