We were wrong to talk about a “shifting burden of proof” in discrimination claims

by Belinda Lester February 2, 2018

We were wrong to talk about a “shifting burden of proof” in discrimination claims

Lawyers have, for as many years as I can remember, tended to advise clients who wanted to bring discrimination claims that, so long as they can make a prima facie case of discrimination, the burden of proof them shifts to the employer to prove that discrimination was not the cause of the treatment complained of. In fact, this is the way discrimination cases have always been determined until now.The EAT in the recent case of Efobi v Royal Mail Group Ltd, however, was clear that this approach is wrong and held that S.136 of the Equality Act 2010 – which deals with the burden of proof in discrimination cases – does not impose any initial burden on claimants to establish a ‘prima facie’ case of discrimination. What it does instead, is require the tribunal to consider all the evidence it has seen and heard at the end of the hearing and then to decide whether or not there are facts from which it can infer that there was discrimination. If there are such facts, then, in the absence of a reasonable explanation from the Respondent, the tribunal MUST uphold the complaint. Therefore, it is not for a Claimant to prove anything. There is no burden of proof to shift. A Claimant need only present evidence of possible discrimination which is then considered by the tribunal in light of the Respondent’s explanation of that evidence.

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.

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