[2025] UKUT 048 (AAC)

Section 136 of the EA 2010 provides:

136 Burden of proof

(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)

the First-tier Tribunal for Scotland Health and Education Chamber.

Section 136 thus creates a shifting burden of proof. In Efobi v Royal Mail Group Ltd the Supreme Court confirmed that section 136 did not change the law on the burden of proof in discrimination cases as it had developed under the predecessor legislation to the EA 2010. As Lord Hodge explained in that case at [14]-[15], the rationale for the introduction of the shifting burden of proof is because of the well-recognised difficulty in direct discrimination cases of proving a discriminatory motive. As Lord Hodge put it at [15]:

The rationale for placing the burden on the employer at the second stage is that the relevant information about the reasons for treating the claimant less favourably than a comparator is, in its nature, in the employer's hands. A claimant can seek to draw inferences from outward conduct but cannot give any direct evidence about the employer's subjective motivation—not least since, as Lord Browne-Wilkinson observed in Glasgow City Council v Zafar [1997] 1 WLR 1659, 1664 : “those who discriminate … do not in general advertise their prejudices: indeed they may not even be aware of them.” On the other hand, it would be unduly onerous to require an employer to disprove a mere assertion of discrimination.  The aim of the old provisions was accordingly to strike a fair balance by requiring proof of primary facts from which, in the absence of explanation, an inference of discrimination could be drawn; but then, if that hurdle is surmounted, requiring the employer to prove that there has been no contravention of the law.

The Supreme Court in Efobi confirmed that the burden on the claimant is:

…that the claimant has the burden of proving, balance of probabilities, those matters which he or she wishes the tribunal to find as facts from which the inference could properly be drawn (in the absence of any other explanation) that an unlawful act was committed. This is not the whole picture since, as discussed, along with those facts which the claimant proves, the tribunal must also take account of any facts proved by the respondent which would prevent the necessary inference from being drawn. But that does not alter the position that, under section 136(2) of the 2010 Act just as under the old provisions, the initial burden of proof is on the claimant to prove facts which are sufficient to shift the burden of proof to the respondent.

The shifting burden of proof does not only apply in direct discrimination cases, and nor does it only apply to the issue of the reason for the treatment complained of. On the face of the statute, it applies to all forms of discrimination claim and all elements of the claim.

The application of the burden of proof to section 15 was specifically addressed in South Warwickshire NHS Foundation Trust v Lee and ors (UKEAT/0287/17/DA), a decision of Eady J:

28.

Allowing for the possibility that there will be mixed motivations for the unfavourable treatment in issue, Simler J opined: “31. … (b) … just as there may be more than one reason or cause for impugned treatment in a direct discrimination context, so too, there may be more than one reason in a s.15 case. The ‘something’ that causes the unfavourable treatment need not be the main or sole reason, but must have at least a significant (or more than trivial) influence on the unfavourable treatment, and so amount to an effective reason for or cause of it. (c) Motives are irrelevant. The focus of this part of the enquiry is on the reason or cause of the impugned treatment …”

29.

In determining whether the reason for the unfavourable treatment was “the something” for section 15 purposes, the ET is bound to approach the burden of proof as provided by section 136 EqA, as follows: “(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.”

30.

As has been made clear in the authorities (see, for example, in the guideline case of Madarassy v Nomura [2007] ICR 867 CA and also in Pnaiser itself, see paragraph 38), although it can be helpful in some cases for the ET to go through the two stages allowed by section 136 - so, determining first whether the Claimant has established a prima facie case such as to shift the burden to the Respondent, and only then going on to consider whether that burden has been discharged - it is not necessarily an error of law not to do so and in many cases moving straight to the second stage will be the appropriate course. Where an ET is satisfied that the burden has shifted for the purposes of section 136 EqA, it will be for the Respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever because of the relevant protected characteristic (and see Igen Ltd v Wong [2005] ICR 931 CA).

…

49.

Concision in an ET’s Judgment can be good, but the reasoning does have to show a practical application of the relevant legal test. In the present case, it should thus be possible to see that the ET had identified the relevant decision-taker (Ms Martin), enquired into the reason why she had decided on the unfavourable treatment (the withdrawal of the conditional offer) - determining this exercise as it would when determining the reason for conduct complained of in a direct discrimination claim - and determined - applying an objective test - whether there was a connection between the Claimant’s disability and “the something” which provided the reason for the treatment in issue (see the guidance provided in Pnaiser).

50.

Allowing for the shifting burden of proof, if the ET was satisfied that there were facts from which it could decide (absent any other explanation) that South Warwickshire had treated the Claimant unfavourably because of something arising in consequence of her disability, then the burden would shift so that it would be for South Warwickshire to demonstrate that its decision to withdraw the conditional offer had, in fact, nothing whatsoever to do with “the something” in issue (here, the Claimant’s absence record).

As can be seen, Eady J thus directs the Tribunal to apply the shifting burden of proof both to the question of what the reason was for the unfavourable treatment and to the question of whether that reason was objectively causally connected to the claimant’s disability. If there are facts from which a Tribunal could decide what the reason was, and that there was a causal connection to the disability, then (applying the old approach from the case of Igen v Wong [2005] ICR 931that Eady J paraphrases in [50]), the burden shifts to the respondent prove that in fact the treatment had “nothing whatsoever” to do with the disability.

Having re-read Eady J’s decision in the South Warwickshire case in the course of writing up this decision, it did strike me that the last part of [50] of her judgment where she says that the burden passes to the respondent to demonstrate that its decision to withdraw the conditional offer had nothing whatsoever to do with the “something” could be read as suggesting that the shifting burden of proof applies only to that element and not also to the causal connection between “the something” and the claimant’s disability. However, that is not what she says at the start of the paragraph, and it seems to me that she only focuses on the “something” at this point because that is what was in issue in that case. Neither party in this appeal has sought to argue that the burden of proof should be applied differently to these two liability elements in a section 15 claim and, as I have noted, on the face of the statute, section 136 applies to both elements. Further, I observe that it is implicit in the Supreme Court’s decision in Essop and ors v Home Office [2017] UKSC 27, [2017] ICR 640, that the shifting burden of proof also applies to the causation requirement in indirect discrimination claims as the Supreme Court in Essop held at [32] that, in a case where a prima facie causal link had been established between the provision, criterion or practice and the disadvantage, it would nonetheless be open to the respondent to show that the there was no causal link between the two in a particular individual’s case. I therefore proceed, as the parties did, on the basis that the shifting burden of proof applies to all the elements necessary to establish liability under section 15.

Although the shifting burden of proof formally creates a two-stage test, as HHJ Tayler in Field v Pye and Co [2022] EAT 68 noted at [33], the case of Hewage v Grampian Health Board [2012] UKSC 37, [2012] ICR 1054 “is often cited as authority for the proposition that in many cases the burden of proof has little to offer, and an employment tribunal may legitimately go straight to the “reason why” question. The employment tribunal may legitimately find as fact that the respondent had a non-discriminatory reason for the impugned treatment.” In Pye, HHJ Tayler said, “That is correct, but the issue is more nuanced”. Having reviewed the authorities, he explained why in some cases a Tribunal risks erring in law if it proceeds straight to the second stage and focuses only on the reasons for the treatment:

37.

In some cases there may be no evidence to suggest the possibility of discrimination, in which case the burden of proof may have nothing to add. However, if there is evidence that discrimination may have occurred it cannot be ignored. The burden of proof can be an important tool in determining such claims. These propositions are clear from the following well established authorities.

…

41.

It is important that employment tribunals do not only focus on the proposition that the burden of proof provisions have nothing to offer if the employment tribunal is in a position to make positive findings on the evidence one way or the other. If there is evidence that could realistically suggest that there was discrimination it is not appropriate to just add that evidence into the balance and then conduct an overall assessment, on the balance of probabilities, and make a positive finding that there was a non-discriminatory reason for the treatment. To do so ignores the prior sentence in Hewage that the burden of proof requires careful consideration if there is room for doubt.

42.

Where there is significant evidence that could establish that there has been discrimination it cannot be ignored. In such a case, if the employment tribunal moves directly to the reason why question, it should generally explain why it has done so and why the evidence that was suggestive of discrimination was not considered at the first stage in an Igen analysis. Where there is evidence that suggests there could have been discrimination, should an employment tribunal move straight to the reason why question it could only do so on the basis that it assumed that the claimant had passed the stage one Igen threshold so that in answering the reason why question the respondent would have to prove that the treatment was in no sense whatsoever discriminatory, which would generally require cogent evidence. In such a case the employment tribunal would, in effect, be moving directly to

paragraphs 10-13 of the Igen guidelines.

43.

Although it is legitimate to move straight to the second stage, there is something to be said for an employment tribunal considering why it is choosing that option. If at the end of the hearing, having considered all of the evidence, the tribunal concludes that there is nothing that could suggest that discrimination has occurred and the employer has established a non-discriminatory reason for the impugned treatment, there would be no error of law in just answering the “reason why” question, but it is hard to see what would be gained by doing so, when the tribunal has already concluded that there is no evidence that could establish discrimination, which would result in the claim failing at the first stage . There is much to be said for making that finding and then going on to say that, in addition, the respondent’s non-discriminatory reason for the treatment was accepted.

44.

If having heard all of the evidence, the tribunal concludes that there is some evidence that could indicate discrimination but, nonetheless, is fully convinced that the impugned treatment was in no sense whatsoever because of the protected characteristic, it is permissible for the employment tribunal to reach its conclusion at the second stage only. But again it is hard to see what the advantage is. Where there is evidence that could indicate discrimination there is much to be said for properly grappling with the evidence and deciding whether it is, or is not, sufficient to switch the burden of proof. That will avoid a claimant feeling that the evidence has been swept under the carpet. It is hard to see the disadvantage of stating that there was evidence that was sufficient to shift the burden of proof but that, despite the burden having been shifted, a non-discriminatory reason for the treatment has been made out.

45.

Particular care should be taken if the reason for moving to the second stage is to avoid the effort of analysing evidence that could be relevant to whether the burden of proof should have shifted at the first stage. This could involve treating the two stages as if hermetically sealed from each other, whereas evidence is not generally like that. It also runs the risk that a claimant will feel that their claim that they have been subject to unlawful discrimination has not received the attention that it merits.

46.

Where a claimant contends that there is evidence that should result in a shift in the burden of proof they should state concisely what that evidence is in closing submissions, particularly when represented, as Mr Brown did in this case.