We were wrong to talk about a “shifting burden of proof” in discrimination claims
The facts of this case were as follows:
E worked as a postman for RMG Ltd. On more than 30 occasions, E applied unsuccessfully for an IT job with the company. He subsequently complained to an employment tribunal that his applications were rejected because he was a black African, born in Nigeria. The tribunal dismissed his race discrimination claims, holding that he had not proved facts from which it could conclude that there was discrimination as he had not provided evidence of the race or ethnic background of his comparators (the other applicants).
However, the EAT held that E did not have to “prove facts”. S.136(2) of the EqA provides ‘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’. However, S.136(2) ‘does not apply if A shows that A did not contravene the provision’ – S.136(3). The tribunal should, therefore, have considered all the evidence in the round, including the evidence adduced by the Respondent, before reaching its conclusions. If the Respondent failed to produce evidence of the race/ethnic background of the other applicants, then that evidence could not then be considered by the tribunal when considering all the facts at the end of the case. However, in this instance, because the tribunal put the initial burden on E to establish a prima facie case of discrimination, the tribunal felt able to make a finding against him notwithstanding the absence of this very important evidence . The EAT stated that requiring a claimant to make a prima facie case for discrimination is simply too onerous and is not what the wording of S.136(2) requires.
The EAT remitted the case to a differently constituted employment tribunal to decide whether or not E’s race discrimination claims were made out.