Do claimants bear the initial burden of proof in discrimination claims?


28 September 2017

The Employment Appeal Tribunal (EAT) has recently reconsidered the question of whether claimants bear the initial burden of proof in claims of discrimination.

Efobi v Royal Mail Group Ltd, EAT

Facts

Mr Efobi brought a claim for direct race discrimination (alongside various other claims), having failed in a number of applications to Royal Mail for an IT-related role. Mr Efobi made in the region of 33 applications. He was long-listed for two positions and was shortlisted for another role, but was ultimately unsuccessful. Royal Mail did not call any of the recruiters or managers involved in the selection process to give evidence at the tribunal hearing.

The employment tribunal accepted Royal Mail’s evidence that the successful candidates all had longer and more relevant experience than Mr Efobi, and dismissed his claim for direct race discrimination. Mr Efobi had failed to adduce facts from which the tribunal could conclude that race discrimination was the reason his applications had been unsuccessful. In other words, Mr Efobi had not satisfied the ‘burden of proof’ test that applies to claims for discrimination.

EAT decision

The EAT upheld Mr Efobi’s appeal and remitted the case to be heard by a new tribunal. It was critical of Royal Mail’s failure to call any of the decision-makers to give evidence, or to provide any evidence of the race or national origin of the successful candidates.

According to the EAT, the relevant provisions of the Equality Act 2010 do not place any additional burden on the claimant to prove facts from which the tribunal can conclude, without any other explanation from the respondent, that discrimination has occurred. This departs from the previously accepted position on establishing a claim for discrimination, which pre-dates the introduction of the Equality Act 2010.

The correct approach, said the EAT, is for a tribunal to consider all the evidence, not just from the claimant but from all sources, to decide whether or not there are facts from which it could conclude that discrimination has occurred.

Consequences

Subject to any further appeal, this decision will have an impact on all claims for discrimination, not only race discrimination, as it changes the long established principles on the burden of proof in such cases. It is likely to mean that respondents will need to be more proactive in their defence of discrimination claims, rather than the onus being on the claimant to first establish facts from which the tribunal can conclude discrimination has occurred.

The case also serves as a reminder of the importance of calling decision-makers as witnesses, rather than relying on the ‘second-hand’ evidence of other witnesses to explain the motives of the decision-makers.

The content of this article is for general information only. For further information regarding monitoring emails, please contact Liz Stevens or a member of Birketts' Employment Team.

This article is from the September 2017 issue of Employment Law, our monthly newsletter on employment legislation and regulation. To download the latest issue, please visit the newsletter section of our website. Law covered as at September 2017.

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Liz Stevens

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