In discrimination claims, the long established position is that the burden of proof initially rests with the claimant to prove facts from which, absent a reasonable explanation, the tribunal can conclude that discrimination has occurred.
The specific wording on this topic changed subtly when the Equality Act 2010 came into force.
Did the slightly altered wording in the Equality Act 2010 change the way tribunals should approach the initial burden of proof question?
A recent Supreme Court case considered where the burden of proof lies in discrimination claims.
Royal Mail Group Ltd v Efobi
Mr Efobi’s is black African who was born in Nigeria. He also holds citizenship of the Republic of Ireland, where he successfully completed a computing qualification in Dublin.
While working as a postman for Royal Mail, Mr Efobi submitted over 30 unsuccessful applications to internally transfer to one of Royal Mail’s IT roles, given his qualification in computing.
Accordingly, in June 2015, Mr Efobi commenced proceedings in the Employment Tribunal against Royal Mail, bringing a wide range of claims. First, in respect of his various applications for the IT roles, he complained of both direct and indirect discrimination, as well as harassment on grounds of race. Subsequently, Mr Efobi brought an additional claim that he was being victimised as a result of bringing the claims in the employment tribunal.
The Employment Tribunal agreed with Mr Efobi, in its ruling on liability, on his victimisation claim and one complaint of harassment. All other claims were dismissed. In particular, the Employment Tribunal found that the initial burden of proof was on Mr Efobi to prove facts from which the tribunal could conclude in the absence of an adequate explanation that discrimination had occurred and he had failed to do so. This test is long established but flows from the wording of legislation that predated the Equality Act (such as the Race Relations Act 1976). The Equality Act wording is subtly different. It says the following at s136(2):
“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.”
Mr Efobi appealed against the dismissal of the claim of direct discrimination. Ordering the claim be reheard, the Employment Appeal Tribunal allowed Mr Efobi’s appeal on two grounds:
- The Employment Tribunal’s interpretation of the wording at s. 136(2) Equality Act 2010, that the initial burden of proof should be imposed on the claimant, was incorrect; and
- In its assessment of the evidence (or lack of), the Employment Tribunal made an error in failing to draw adverse inferences based on the fact that Royal Mail adduced no evidence from anyone who actually dealt with any of Mr Efobi’s job applications.
The matter was then successfully appealed to the Court of Appeal by Royal Mail.
Finally, Mr Efobi appealed the Court of Appeal’s judgment to the Supreme Court.
The Supreme Court unanimously dismissed the appeal from Mr Efobi finding that the change of wording from “where … the complainant proves facts” in s. 54A(2) Race Relations Act 1976 to “If there are facts from which the court could decide” in s. 136(2) Equality Act 2010 did not make a substantive change in the law. Although the Supreme Court did acknowledge that the new wording did create scope to interpret, based on the wording, that there is no longer any burden of proof on a claimant, previous case law, as well as the Explanatory Notes to the Equality Act, positively suggested otherwise,
This judgment provides confirmation that, in discrimination claims, the initial burden of proof lies with the claimant to demonstrate his or her case and prove facts from which, absent a reasonable explanation, the tribunal can conclude discrimination has occurred.
In relation to Royal Mail’s lack of evidence, the Supreme Court agreed that had Mr Efobi overcome the burden of proof point, an absence of evidence from Royal Mail demonstrating that discrimination had not occurred could rightly lead to adverse inferences being drawn; however, he did not overcome that initial hurdle and the tribunal’s approach in this case could not therefore be criticised.
This decision is unsurprising and confirms the established case law position in relation to discrimination burden of proof.
This is welcome for employers – the burden of proof provisions are designed to weed out claims where discrimination is being alleged without any evidence that it has taken place.
It serves as a reminder to potential claimants that a mere assertion of discrimination will not normally be enough to shift the burden of proof onto an employer to show that discrimination has not occurred.
Not providing evidence which points away from discriminatory treatment is a dangerous approach for employers to take though. Ideally, when defending a claim, employers should always ensure that evidence which shows there was no discriminatory treatment is presented to the tribunal. If an employee succeeds in shifting the burden of proof, an absence of such evidence could prove fatal to any defence.
If you have any queries relating to discrimination claims or any other Employment Law or HR queries, please do not hesitate to contact our Employment team on 01228 552600 or 01524 548494.