## Introduction

Section 199 of the Equality Act 2010 is sometimes linked in commentary to a “presumption” of discrimination in transfer decisions. In practice, the evidential rule that shifts the burden of proof in discrimination claims is found in section 136 of the Equality Act 2010. That rule is central when someone says a transfer decision — for example a change of role, location, department, provider, or hospital — was because of a protected characteristic.

This guide explains how the burden of proof works in discrimination claims about specific transfers in work and services, what evidence helps at each stage, and how organisations can make fair, lawful decisions. Protected characteristics include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, and sexual orientation.

## What You’ll Learn

- Where the burden of proof rule sits in the Equality Act (section 136) and how it is applied
- What a claimant must show to establish a prima facie case of discrimination
- How employers and service providers can justify transfer decisions
- The types of claims that commonly arise in transfer scenarios (direct, indirect, disability-related, adjustments)
- Key case law on the burden of proof, including Efobi v Royal Mail and Madarassy v Nomura
- Practical steps to document and defend legitimate transfer decisions
- Simple checklists and a quick reference table for day-to-day use

## Core Concepts

### Section 199 and the presumption label

- Some summaries link section 199 with a “presumption” in discrimination cases. The statutory rule about evidential burden is section 136 Equality Act 2010. Tribunals apply section 136 across Equality Act claims, including those involving transfers in work or services.
- In short: once the claimant shows facts from which a tribunal could find discrimination, the tribunal must uphold the claim unless the respondent shows that the treatment was not because of a protected characteristic (or, for indirect discrimination, was a proportionate means of achieving a legitimate aim).

Tip: When preparing or defending a case about a transfer, focus on section 136 and the specific prohibition relied on (for example, section 13 direct discrimination, section 19 indirect discrimination, section 15 discrimination arising from disability, sections 20–22 reasonable adjustments).

### The two-stage burden of proof test

- Stage 1 (claimant): Provide facts from which the tribunal could conclude that a protected characteristic was a cause of the unfavourable treatment. This does not require proof beyond doubt. It can be based on primary facts, patterns, comparators, and reasonable inferences.
- Stage 2 (respondent): If stage 1 is met, the respondent must prove a clear, non-discriminatory explanation. For indirect discrimination, the respondent must show a legitimate aim and that the measure was proportionate. For section 15 (disability), show that the reason for the treatment was not the disability and, if it was, that the treatment was justified.

Key points from case law:

- Madarassy v Nomura: difference in status and treatment alone may not be enough; there must be “something more” suggesting discrimination.
- Efobi v Royal Mail: tribunals can look at all evidence in the round and do not confine themselves to a rigid, sequential approach; however, the initial requirement for facts at stage 1 still matters.

### Transfers in work and services

“Specific transfers” in disputes usually fall into two groups:

- Work: moves to different roles, locations or departments; redeployment; secondment; selection for transfer during restructures; transfers connected to outsourcing or insourcing (alongside TUPE where relevant).
- Services: moving a patient between facilities; assigning a pupil to a different school site; reallocating social care provision; moving tenants within a housing portfolio.

Claims that often arise:

- Direct discrimination (section 13): the claimant was treated less favourably because of a protected characteristic.
- Indirect discrimination (section 19): a criterion or practice for selecting people for transfer puts a group at a particular disadvantage and cannot be justified.
- Discrimination arising from disability (section 15): unfavourable treatment because of something arising in consequence of disability.
- Failure to make reasonable adjustments (sections 20–22): where a provision, criterion or practice, or a physical feature, puts a disabled person at a substantial disadvantage.
- Harassment (section 26) and victimisation (section 27) can also feature, for example where objections to a transfer lead to retaliatory treatment.

### Evidence that can establish a prima facie case

Helpful material at stage 1 includes:

- Comparators: how others without the characteristic were treated in similar transfer decisions
- Timing: close link between disclosure or awareness of a characteristic and the transfer decision
- Departures from policy: skipping or altering a selection matrix, or inconsistent scoring
- Statements: comments suggesting bias or stereotypes
- Statistics: patterns showing a group is moved disproportionately
- Documents: emails, meeting notes, and reasons recorded at the time
- Process issues: ignoring reasonable adjustments or failing to consider alternatives

### How respondents can explain decisions

To discharge the burden at stage 2:

- Give clear, contemporaneous reasons for the transfer and who was in the selection pool
- Show consistent application of objective criteria (e.g., skills match, business need, continuity of care)
- For indirect discrimination, evidence the legitimate aim (efficiency, safety, service continuity) and why the chosen approach was proportionate compared with less discriminatory alternatives
- For section 15, explain the actual reason for the treatment and, if needed, why it was justified
- For disability, record adjustments considered and why they were made or not feasible
- Evidence training, audits, and appeals that support fair decision-making

## Key Examples or Case Studies

### Efobi v Royal Mail Group Ltd [2021] UKSC 33

- Context: Clarifies how tribunals approach section 136. The Supreme Court said tribunals may consider all evidence available, not just what the claimant presents first, and should avoid an overly rigid two-stage approach.
- Takeaway: The initial stage still requires facts that could point to discrimination, but tribunals assess the full picture. Respondents should expect the tribunal to weigh their explanation alongside the claimant’s evidence.

### Madarassy v Nomura International plc [2007] EWCA Civ 33

- Context: Leading authority on the stage 1 threshold (pre‑Equality Act but still used). It explains that mere difference in status and treatment is not enough without “something more” from which discrimination could be inferred.
- Takeaway: Claimants should assemble a coherent set of facts; respondents should keep contemporaneous records to evidence a neutral rationale.

### Hypothetical employment transfer

- Scenario: An employer relocates one team to a remote site. A 58‑year‑old employee claims he was selected because of age.
- Stage 1: He points to being the only person over 55 in the pool, the manager’s prior comment about “fresh energy for the new site”, and gaps in the scoring sheet.
- Stage 2: The employer shows a skills matrix completed before birthdays were known, evidence that two employees aged 50+ were retained at the original site because of project dependencies, and notes of the selection meeting. Outcome: The tribunal could find that the employer’s records rebut the inference of age discrimination.

### Hypothetical service transfer

- Scenario: A hospital transfers a patient who is Muslim to a different facility with fewer amenities. The patient alleges the decision was because of religion.
- Stage 1: The patient shows other patients with similar clinical profiles remained, and points to an email asking whether “family visiting will be difficult during Friday prayers”.
- Stage 2: The hospital provides bed management logs showing a capacity shortage, triage criteria based on clinical acuity, and records of an offered visiting schedule that accommodated religious observance. Outcome: A tribunal could accept the capacity and clinical criteria as the reason, not religion; any disadvantage may still raise a reasonable adjustments or indirect discrimination question depending on the facts.

## Practical Applications

For employers

- Plan objective criteria: Define clear, job‑related criteria for any transfer pool (skills, qualifications, continuity needs). Avoid criteria that correlate with protected characteristics unless objectively justified.
- Keep records: Document the pool, scoring, who decided, and when. Record the business reasons and any constraints.
- Test for bias: Sense‑check outcomes to see whether a protected group is disproportionately selected. If so, review criteria and alternatives.
- Consider disability: Identify reasonable adjustments to selection methods and to the transfer itself (working patterns, equipment, transport support).
- Communicate decisions: Provide clear written reasons and a route to appeal.
- Train managers: Short, practical training on Equality Act basics and fair selection helps avoid errors.
- Audit: Periodically review transfer outcomes and decision documents for consistency.

For service providers (health, education, housing, local authorities)

- Use published criteria: Clinical need, safety, capacity, and service continuity should be set out in policies and applied consistently.
- Record triage and alternatives: Note the options considered and why the chosen move best met the criteria.
- Address group impact: Where a rule has group effects (e.g., visiting hours, location), consider if it indirectly disadvantages a protected group and whether a less restrictive alternative is available.
- Make adjustments: Provide reasonable adjustments for disabled service users where a transfer would otherwise be a substantial disadvantage.
- Keep a paper trail: Keep contemporaneous notes and send clear decision letters.

For claimants and advisers

- Build the stage 1 picture: Gather comparators, timelines, emails, and policy deviations. A subject access request can help.
- Be specific: Identify the protected characteristic, the treatment (the transfer), and the link between them. If indirect discrimination is alleged, identify the rule and the group disadvantage.
- Consider limitation: Most employment claims must be brought within three months less one day of the act complained of (section 123), subject to ACAS early conciliation pauses.

## Summary Checklist

- Use section 136 for the burden of proof in Equality Act cases about transfers
- Stage 1: Facts that could point to discrimination; “something more” than difference in status and treatment
- Stage 2: Clear, non‑discriminatory explanation; for indirect discrimination, show legitimate aim and proportionate means
- Identify the correct legal route: direct (s.13), indirect (s.19), disability‑related (s.15), reasonable adjustments (ss.20–22), harassment (s.26), victimisation (s.27)
- Keep objective criteria and contemporaneous notes for selection and triage
- Consider and record reasonable adjustments for disabled people
- Review outcomes for group effects and consider alternatives
- Communicate reasons and provide an appeal path
- Track time limits and ACAS early conciliation in work cases

## Quick Reference

| Topic                   | Statute/case                   | Key point                                                              |
| ----------------------- | ------------------------------ | ---------------------------------------------------------------------- |
| Burden of proof         | Equality Act 2010 s.136        | Two‑stage test; respondent must explain once facts are shown           |
| Direct discrimination   | Equality Act 2010 s.13         | Less favourable treatment because of a protected characteristic        |
| Indirect discrimination | Equality Act 2010 s.19         | PCP causes group disadvantage; must be justified                       |
| Disability: s.15        | Equality Act 2010 s.15         | Unfavourable treatment arising from disability; justification possible |
| Reasonable adjustments  | Equality Act 2010 ss.20–22     | Duty to remove substantial disadvantages for disabled people           |
| Burden cases            | Efobi [2021]; Madarassy [2007] | Stage 1 “something more”; tribunal considers all evidence              |

Section 199 Equality Act 2010