Employment appeal tribunal considers the burden of proof in discrimination cases

In the recent case of Efobi v Royal Mail Group Ltd the Employment Appeal Tribunal (“EAT”) looked at whether it is still the correct approach that the initial burden of proof is on the Claimant in cases of potential discrimination. The explanatory notes to Section 136 of the Equality Act 2010 state ‘the burden of proving his or her case starts with the claimant’. However, the EAT instead took the view that the Tribunal should consider all the evidence before coming to a conclusion on whether discrimination can be inferred from the facts provided.

Background

Mr Efobi was a black African who born in Nairobi.  He worked for The Royal Mail Group Ltd (‘Royal Mail’) as a postman. He made over 30 unsuccessful applications to the Royal Mail for IT related roles. He subsequently complained to an Employment Tribunal that his applications were only rejected due to direct race discrimination.

As the Claimant in the case, the Employment Tribunal took the view that Mr Efobi had to prove facts from which the Tribunal could conclude, absent an explanation, that there had been discrimination.  He was unable to do so and the Tribunal dismissed the case.  Mr Efobi appealed to the EAT and argued that the Tribunal had erred in law in its application in relation to the burden of proof and that it had failed to properly analyse the inferences the Tribunal could have drawn from the evidence provided.

Decision

The EAT ruled that the Tribunal had erred in placing the initial burden of proof upon Mr Efobi.  Despite the explanatory notes to the Equality Act stating that the initial burden of proof lies with the Claimant, the EAT held that this did not reflect the true will of Parliament and that instead the Tribunal should review all of the evidence at the end of the hearing to decide if it is possible to infer discrimination.  The case was remitted to a fresh Tribunal. 

Comment

This is an important decision as it changes the approach to who bears the burden of proof and may make it easier for the Claimant to successfully bring claims of discrimination.  This is particularly the case where key evidence could only be accessible by the company, such as, in this case, the race of the successful candidates.

This case also serves as a reminder to employers that they should ensure that they call all relevant witnesses when defending discrimination claims.  In this case the Royal Mail had not provided any information about the race or nationalities of the successful applicants and none of the employees who had rejected the Claimant’s application attended the hearing as witnesses.  The EAT highlighted that if an employer does not provide evidence then the Tribunal may draw adverse inferences from that.

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Kerry Garcia

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