The Respondent suffered a downturn in business after the pandemic and had to cut its workforce by nearly half so embarked on a redundancy exercise. The Claimant was selected for redundancy in phase 2 of a programme of redundancies. He was scored against an agreed matrix but did not achieve a sufficient number of points to reach the threshold applied by the Respondent. He was dismissed. The Claimant accepted before the ET that the need for redundancies was genuine and real. His case, however, was that when he was selected (in phase 2 of the process) his selection was both unfair and because of his Islamic faith. The Tribunal found the dismissal procedurally and substantively fair. The Claimant appealed on the basis that the ET had failed to apply the burden of proof provisions contained in section 136 Equality Act 2010 and had failed to consider whether numerical evidence about the selection exercise was sufficient to shift the burden to the Respondent.

The EAT dismissed the appeal. Although the ET had not referred expressly to section 136 Equality Act 2010, or the judicial guidance relating to it, it had in substance considered whether the Claimant had made out a prima facie case of discrimination and concluded he had not. Whilst in a suitable case, appropriate statistics, either on their own or taken with other evidence, might be sufficient to shift the burden of proof, the numbers relied on by the Claimant on this appeal were not capable of doing so and had not been presented to the ET as they had on appeal. No error of law was disclosed by the ET not expressly considering whether they shifted the burden of proof.