Clarification of ‘burden of proof’ in discrimination claims


In the recent case of Royal Mail Group Ltd v Efobi the Court of Appeal (COA) confirmed that the initial burden of proof in discrimination claims rests with the claimant to provide evidence of any wrongdoing.

This claimant in this case, Mr Efobi, worked for Royal Mail as a postman and held a graduate and post graduate degree in computing. During this time, he had shown an interest in transferring to the business’ IT department and had made unsuccessful applications for over 20 IT based positions.

Efobi raised a claim for race discrimination against his employer as he believed he was not selected for these IT roles on the basis of his Nigerian descent. He brought additional claims of victimisation, after his employer refused to allow him to finish on time to attend a wedding, and harassment after he was covertly filmed and banned from driving duties once he raised his initial claim.

In response to the claims, the initial employment tribunal (ET) agreed that Efobi had suffered victimisation and harassment at the hands of his employer. The ET confirmed that the employer had ‘engaged in unwanted conduct relating to the claimant’s race that had the purpose and effect of violating the claimant’s dignity’. However, crucially they did not uphold the claim for direct race discrimination when it came to the job applications, as Efobi was unable to discharge the burden of proof on him; he had to provide evidence to convince the ET that race was the motivation for the employer’s treatment of him and he had been unable to do so.

The claimant appealed to the Employment Appeal Tribunal (EAT) who decided that the ET had erred in their decision to place the burden of proof on Efobi to prove that he suffered discrimination. They said the Equality Act 2010 did not specifically require claimants to present a case against an employer which, on the face of it, it could be concluded that there was a case to answer on discrimination.

This decision was appealed to the COA who overturned the ruling of the EAT and, in citing the decision of Ayodele v Citylink Ltd [2017], confirmed the original ET had applied the ‘burden of proof’ test correctly. The COA explained that the claimant must be able to show, on the face of it, that the reason for their treatment was their protected characteristic rather than simply identifying the treatment.

Ultimately this decision reaffirms that the initial burden of proof for discrimination claims lies with the claimant. It is up to them to first convince a tribunal that an act of discrimination could be the reason, in the absence of any explanation, for the behaviour in question.

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