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Discrimination: The ‘burden of proof’ has shifted

Employment lawyers have long known (since the guidance provided by the Court of Appeal decision in Igen v Wong) that the Claimant had the initial obligation of ‘proving’ the facts upon which a claim of direct discrimination could be brought. So, according to that guidance (based on the old Sex Discrimination Act 1975):

  1. It was for a claimant to establish facts that would allow the tribunal to decide that an act of unlawful discrimination had taken place, in the absence of an explanation by the respondent
  2. Once those facts were established it was for the respondent to prove that discrimination did not take place.

This has been referred to as the “shifting burden of proof” – that is, it is for the claimant to establish a prima facie case (Stage 1) and then, once this is done, the respondent (at Stage 2) must prove that there was no unlawful discrimination.

Not any more! In the recent case of Efobi v Royal Mail Group, the EAT has found this approach, where the Claimant has to show a prima facie case, to be wrong! The repercussions are significant.

Facts

Mr Efobi was employed as a postman by the Royal Mail. Whilst in that role, he applied for a number of roles (mainly IT) within the Royal Mail, but was unsuccessful on each occasion, a matter which he put down to him suffering discrimination on grounds of his race.

Rejecting his claim, the employment tribunal (ET) held, in line with the Igen guidance, that at Stage 1 it is for the Claimant to prove facts from which the tribunal could conclude, in the absence of an explanation from the Respondent, that there had been discrimination. The ET did not believe that Mr Efobi had done this. Further, in the ET’s view, Royal Mail had provided sufficient evidence to establish that it had rejected each of Mr Efobi’s applications for good reason and that these rejections were not, in any way, discriminatory.

Interestingly, during the Employment Tribunal hearing, the Royal Mail did not volunteer any evidence about the race or the national origins of those who were appointed to the roles that Mr Efobi had applied. Nor did the Royal Mail call as a witness any of those who had rejected any of the Claimant’s applications.

Mr Efobi appealed to the EAT.

The EAT found the ET’s approach to the question of discrimination, requiring the Claimant to establish the prima facie case, to be wrong. The EAT referred to the Igen decision/guidance, but found that the wording of s. 63A of Sex Discrimination Act 1975 was significantly different to that of s 136 of the Equality Act 2010, and in particular, that 136(2) EqA does not place any burden on a claimant to prove anything at Stage 1. Rather, it is for a tribunal to consider from the entirety of evidence, from all sources, whether or not there are facts from which it could conclude that discrimination has occurred. If such facts exist, and the employer offers no reasonable explanation, the tribunal must find that discrimination has occurred.

The EAT went further by suggesting that it might actually be misleading to refer to a “shifting of the burden of proof” from a claimant to the respondent, which the EAT acknowledged, was a different approach to the one taken by the courts in previous discrimination cases. However, the EAT drew a distinction between claims falling under the Equality Act 2010 and those cases heard under the previous legislation.

In summary, the EAT found there to be a number of flaws in the ET’s original approach to the burden of proof in the Efobi case, including the lack of relevant evidence from the Royal Mail, such that the case has been remitted to a differently constituted tribunal to decide whether or not Mr Efobi’s discrimination claims were made out. We await that decision with baited breath.

Where Now?

Clearly, the case of Efobi v Royal Mail Group Ltd represents an important reconsideration of the burden of proof provisions of the Equality Act 2010 and a shift away from putting the onus on the Claimant to prove, in the first instance, the facts upon which a tribunal can identify discrimination.

This case is significant because interpretation of the burden of proof in S.136 of the Equality Act is critical to all discrimination cases. The decision will clearly affect the approach that ETs take when dealing with such cases in the future, including turning their minds appropriately to the question of the identity of the alleged discriminator in direct discrimination complaints (ie potential witnesses), and provides a warning to respondents of the risks involved in not calling those alleged discriminators (without good explanation) to give evidence. However, the real impact of this ruling will be felt (certainly taken note of by advisers) much earlier in the story. For example:

  • Employees may now feel that it will be easier to prove direct discrimination, albeit would be claimants will still have to construct their case carefully, bringing as much evidence as they can to assist the Tribunal in finding the facts that point to unlawful discrimination, whatever the relevant protected characteristic happens to be.
  • Employers must now ensure they prepare a robust case when facing action over alleged discrimination. In particular, the Efobi case illustrates the importance of making sure that they have an explanation and all relevant evidence, including documentary records, to justify any decision which could be the subject of an allegation of discrimination. These matters will be taken into account by a tribunal when deciding whether or not there is a prima facie case of discrimination, and not only at the second stage, when the employer is required to prove that the protected characteristic did not influence their decision making.