Who Bears the Initial Burden of Proof in Discrimination Claims?
The Supreme Court has confirmed that in discrimination claims, the claimant bears the initial burden of proof to establish facts from which an inference of discrimination can be drawn.
Royal Mail Group Ltd v Efobi
Mr Efobi is a black Nigerian and citizen of Ireland. He was employed as a postman by Royal Mail Group Limited (RMG Ltd) and over a period of three years he applied for over 30 IT posts with RMG Ltd. He made the applications online and accompanied each one with a CV detailing his graduate and post-graduate qualifications in information systems. He uploaded a generic CV for each application, including details of his town and country of birth on his application (although not required to do so), and did not tailor his application. He was unsuccessful on every occasion and subsequently brought various claims, including direct race discrimination.
At the employment tribunal hearing, RMG Ltd did not call as witnesses any of the recruiters or managers who were actually involved in processing Mr Efobi's applications, instead calling on managers who were familiar with the recruitment process generally. Nor did it provide any evidence as to the race and national origins of other applicants for relevant posts.
The employment tribunal dismissed Mr Efobi's race discrimination claims on the basis that he had not proved the facts from which it could conclude that discrimination had occurred. For example, he had not provided evidence to demonstrate that the successful applicants were appropriate comparators.
Employment Appeal Tribunal (EAT) Decision
The EAT allowed Mr Efobi's appeal, and held that the tribunal had misdirected itself as to the effect of section 136(2) Equality Act (EqA), when it concluded that it was for Mr Efobi to prove a prima facie case of discrimination.
Section 136(2) EqA, provides that: "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". The burden of proof provisions in discrimination legislation preceding the EqA were worded differently. The claimant was required to prove these facts before the burden of proof 'shifted' to the respondent.
According to the EAT, the proper interpretation of section 136(2) was therefore for the tribunal to consider all the evidence, rather than only to consider Mr Efobi's evidence, meaning there was no burden on the claimant at all.
What Was the Supreme Court's Decision?
This decision was overturned by the Court of Appeal and Mr Efobi appealed to the Supreme Court. The Supreme Court rejected the EAT's interpretation of section 136(2) EqA and its decision confirms that the change in the wording in the EqA did not change the law. Therefore the burden of proof will not shift to the employer to explain the reason for the alleged unfavourable treatment of the claimant unless the claimant is able to prove, on the balance of probabilities, facts from which the tribunal could conclude (in the absence of an adequate explanation) an unlawful act of discrimination had occurred.
Drawing Inferences
Mr Efobi's second ground of appeal was that the employment tribunal had failed to draw adverse inferences from RMG Ltd's failure to call any decision-makers as witnesses.
The Supreme Court held that tribunals should be free to draw (or refuse to draw) inferences from the facts of the case using their common sense, rather than just referring to legal rules.
The Supreme Court therefore held that the employment tribunal had not erred as a matter of law, because it did not draw adverse inferences from the fact that none of the actual decision-makers gave evidence. It also noted that even if adverse inferences had been drawn, the fact alone that the successful candidate was of a different race to the successful candidates would not have allowed the employment tribunal to conclude that there had been discrimination. Therefore the burden of proof did not shift to RMG Ltd to explain its decisions, and Mr Efobi's claim was entitled to be dismissed by the employment tribunal.
What Should We Learn From this Case?
The Supreme Court's decision reinforces the existing approach in relation to the burden of proof in discrimination cases. This is of course relatively unsurprising in view of the previous Court of Appeal decision, and the Supreme Court noted that otherwise it could be unduly onerous to require an employer to disprove a mere assertion of discrimination.