Section 136 of the Equality Act 2010 applies to any proceedings relating to a contravention of the Act.  Subsection (2) says “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”.  Subsection (3) then states that Subsections (2) “does not apply if A shows that A did not contravene the provision”.  Clearly when it comes to deciding whether or not discrimination has occurred often a tribunal has to draw an inference from the facts in front of them. At this stage it means that if the facts suggest that discrimination has occurred the tribunal must make that finding.  That may then be displaced at the second stage if the Respondent can show there’s a wholly non-discriminatory explanation for what has happened.

In the recent case of Efobi v Royal Mail Group Limited the Employment Appeal Tribunal considered to what extent the facts that the tribunal are looking at the first stage must be drawn from the Claimant’s evidence.  In the particular case the tribunal had found that the Claimant hadn’t even got to ‘first base’ in terms of his evidence.  The Appeal Tribunal however found that the tribunal had misdirected itself – the tribunal needs to look at all the facts as a whole including things supported by the Respondent’s evidence. This can include inferences that are made from a failure on the part of a Respondent to put forward any evidence or for example to answer questions.  If from looking at that whole it appears that discrimination has taken place, then that first stage test is met, and the tribunal should then go on to consider the second stage as to whether or not the Respondent can show there’s a wholly non-discriminatory explanation.

This emphasises that if you are on the receiving end of a claim it could be dangerous to assume that the person bringing that complaint is going to have to prove their claim and you don’t really need to get involved until they’ve done that.  You need to be thinking of that first stage too and at what evidence you can also bring to the matter.