The Claimant lost his claims of race discrimination at the ET and his appeal to the EAT was also rejected. The two grounds of appeal against that decision were 1) that the ET had erred in law when, despite making findings of unwanted treatment and conduct against the Respondents, it held that, because of the overall findings about the universality of this treatment towards staff, the Claimant had not established prima facie evidence of less favourable treatment and therefore the burden of proof had not shifted to the Respondents; 2)
there was a fundamental error in the approach taken by the ET as to the proper application of section 136 of the Equality Act. In the light of the recent judgment of Elisabeth Laing J in the EAT in Efobi the Claimant submitted that section 136(2) does not in fact put any burden on a Claimant before the ET. It requires the ET to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not there are "facts" from which the ET could find discrimination and, if so, it must so find unless the Respondent can discharge the burden on it.

The court dismissed the appeal. The ET did not fall into the error alleged in the first ground of appeal. It was simply making findings of fact based on all of the evidence at the first stage of the enquiry. It found that there was no less favourable treatment of the Claimant as compared with others. That was not to do with any "explanation" for prima facie discrimination which the Respondent might have put forward at the first stage. As far as the second ground of appeal was concerned, the language of section 136 makes it clear that, if the inference of discrimination could be drawn at the first stage of the enquiry, then it must be drawn by the court or tribunal. The consequence will be that the claim will necessarily succeed unless the Respondent discharges the burden of proof. The court could see no reason in fairness why a Respondent should have to discharge that burden of proof unless and until the Claimant has shown that there is a prima facie case of discrimination which needs to be answered. There was nothing unfair about requiring that a Claimant should bear the burden of proof at the first stage. If he or she can discharge that burden (which is one only of showing that there is a prima facie case that the reason for the Respondent's act was a discriminatory one) then the claim will succeed unless the Respondent can discharge the burden placed on it at the second stage.