Is there any initial burden of proof on employees to successfully claim discrimination?

The case of Efobi may have made it easier for employees to succeed in discrimination cases in the future. Up until now, it was established that an employee would first need to show that, as a matter of fact, they had been discriminated against on the grounds of one of the 9 “protected characteristics” listed in the Equality Act 2010. The burden of proof would then switch to the employer who would have to show that the discrimination was a “proportionate means to achieve a legitimate aim”.

The Claimant in this case was a black African born in Nigeria who was employed as a postman by Royal Mail. He wanted a role in the IT department of Royal Mail and submitted applications online. The tribunal found that the CV he uploaded was generic and not tailored to the roles he applied for. He also submitted details on his hometown and place of birth (Nigeria) which he was not expected to do as an internal applicant. Shortlisted candidates were then asked to take a test which included psychometric, skill and ability based tests which the tribunal found he had failed. 

After 33 unsuccessful applications for a job in Royal Mail’s IT department, only one of which he was shortlisted and interviewed for, he brought a claim for direct race discrimination.

At the Employment Tribunal, the judge did not allow the claim for direct race discrimination to succeed.  It found that no evidence had been produced by the Claimant which the tribunal could rely upon to find that there had been direct race discrimination.

The Claimant appealed to the EAT and was successful. The EAT looked at the wording of section 136 of the Equality Act and found that it does not impose a duty on a Claimant to prove discrimination.  Instead, it found that it is for the tribunal to look at “the facts as a whole”. The EAT was very critical of the Respondent’s failure to call any of the decision-makers to the hearing to give evidence which left the tribunal to rely on second-hand evidence. There was also no evidence put forward about the race or nationality of successful candidates.

The EAT pointed out that the previous case law which applied the burden of proof on the Claimant was based on the Discrimination Act 1975. This has since been replaced by the Equality Act 2010 which has different wording to the 1975 Act. No cases so far have questioned the change until now.

This is an important decision of the EAT as it relates to all forms of discrimination.  It does away with the long-standing and established case law (see the Court of Appeal case of Igen v Wong) that initially claimants bear the burden of proving that there are facts from which, in the absence of an adequate explanation, the Tribunal can conclude there has been discrimination.  It is not known whether future EAT decisions will follow this decision or revert back to the previously established position.

This case may be appealed but at the time of writing, no such decision has been made.  Given the significance of this decision it’s likely that it will be appealed.

What does this mean for you or your business?

With no burden of proof on claimants in discrimination cases, employees can bring discrimination cases without solid evidence of discrimination. As long as they have a suspicion of discrimination, they may be able to present this to a tribunal and it will be up to the employer to present evidence to the contrary.

What do you need to be doing now?

If a claim for discrimination is made against an employer, they should be willing to present evidence to the tribunal. Royal Mail did not bring any decision-maker to the tribunal and only focussed on trying to show why it acted the way it did, rather than presenting evidence to show decision-makers did not act with a discriminatory motive.

The usual position for employers in the past may have been to refuse to provide information on other staff when requested by a claimant. This action may, as a result of this case, now act against them when questioned at tribunal.

These notes have been prepared for the purpose of an article only. They should not be regarded as a substitute for taking legal advice.