Discrimination Claims - Who Bears the Initial Burden of Proof?
In a recent case, the Employment Appeal Tribunal (EAT) departed from the long established principle that the claimant bears the initial burden of proof in claims for discrimination. But why?
Best Practice for Employers
- s136(2) Equality Act 2010 (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.
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In the first case to consider the interpretation of the burden of proof provisions under the EqA, the EAT confirmed that s136(2) EqA does not place any burden on a claimant. Instead, a tribunal must consider all evidence from all sources to decide 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.
- Employers should bear this in mind early on if allegations of discrimination are raised and assess risk by reference to the facts when taken as a whole.
Efobi v Royal Mail Group Ltd
Mr Efobi was employed as a postman for the Royal Mail (RM). Whilst in this role, he unsuccessfully applied for a significant number of IT jobs with the RM and subsequently complained that his lack of success was due to his race.
The Employment Tribunal (ET) 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.
RM, on the other hand, had provided sufficient evidence to establish that it rejected Mr Efobi's applications for good reason and that this was not, in any way, discriminatory. Mr Efobi appealed to the EAT.
The EAT's Decision
The EAT upheld Mr Efobi's appeal. It held that there was no initial burden on Mr Efobi, under section 136(2) EqA, to prove facts from which the ET could decide that RM had discriminated against him. Rather, the ET is required to consider all the evidence from all sources at the end of the hearing, in order to decide whether or not there are facts from which discrimination could be inferred.
In reaching its conclusion, the EAT further noted that the will of Parliament should be deduced from the language of the statute itself, not from the explanatory notes that accompany it. On such an interpretation, therefore, the EAT found that it may be misleading to refer to a shifting of the burden of proof from the claimant to the respondent, which, it acknowledged, was a departure from the approach taken by the courts in previous discrimination cases. However, the EAT drew a distinction between claims falling under the Equality Act 2010 and those heard under predecessor legislation.
The EAT identified a number of flaws in the ET's original approach to the burden of proof in this case and so it remitted the case to a differently constituted tribunal to decide whether or not Mr Efobi's discrimination claims were made out. The outcome of this hearing is awaited.