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Employment Law Case Update: Ayodele v Citylink

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Born in Nigeria, Mr Ayodele moved to the UK and joined Citylink, a logistics organisation delivering letters and parcels. Mr Ayodele worked at the distribution depot in Swansea as a warehouse operative, initially as an agency worker before gaining direct employment with Citylink.

In 2012 Mr Ayodele resigned due to a repudiatory breach of his contract of employment by Citylink. Mr Ayodele issued proceedings in the Employment Tribunal claiming constructive unfair dismissal, racial discrimination, racial harassment and victimisation, all dating back to 2007 when his employment began. His discrimination allegations included, amongst others, the manner in which his line manager spoke to him, delays in being paid, the handling of his annual leave requests, and being removed from a customer service desk.

Owing to the dates involved, the Tribunal had to consider the Equality Act 2010 alongside its predecessor, the Race Relations Act 1976.       

In relation to the discrimination claim, the Tribunal considered all the evidence presented on both sides and held that Mr Ayodele had not proved Citylink’s less favourable treatment, dismissing his claims. Mr Ayodele then unsuccessfully appealed to the EAT.

Following the failure of his appeal at the EAT, Mr Ayodele proceeded to the Court of Appeal on the grounds that the Tribunal wrongly placed the burden of proof on him. Relying on the decision in Efobi v Royal Mail Group Ltd originally made in October 2017, Mr Ayodele submitted that there was a fundamental error in the approach taken by the Employment Tribunal as to the proper application of the burden of proof under s136 Equality Act 2010.

The October 2017 decision in Efobi v Royal Mail Group Ltd stated that the wording of s136 Equality Act 2010 does not impose a burden of proof on a claimant at all. Instead, it requires the Tribunal to consider all the evidence, from all sources, in order to decide whether or not there are ‘facts’ from which it can conclude that discrimination occurred.

In Mr Ayodele's case the evidence showed, for example, many other employees experienced difficulties with being paid. Mr Ayodele had therefore failed to prove facts from which the Tribunal could decide that discrimination had occurred. This decision restores the belief that the burden of proof should be on the claimant in discrimination cases, overturning the EAT's recent decision in Efobi. The Court's decision is, therefore, clearly significant. Nevertheless, in practice, it is rare for cases to stand or fall on the application of the burden of proof.

More commonly, having heard all the evidence, Tribunals are able to positively decide the reason why a respondent acted as it did, without recourse to the burden of proof. Permission to appeal to the Court of Appeal has been sought in the Efobi case. It will be interesting to see how the Court's decision in Ayodele will affect that appeal.

This article is from our weekly Employment Law Newsletter published on 04/01/2018.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email


This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.