Where’s the burden of proof in discrimination claims?

In the Royal Mail Group v Efobi, the Supreme Court has affirmed the Court of Appeal’s decision in finding that claimants must provide evidence to the tribunal in discrimination claims.

The claimant in this case worked as a postman. He made over 20 unsuccessful applications for IT-related jobs with his employer and claimed his rejections were because he was of Nigerian descent.

He also alleged that a number of the employer’s other actions towards him – refusing to allow him to finish his shift in time to attend a wedding, filming him covertly in order to gather evidence for disciplinary proceedings, and suspending him from driving duties – amounted to discrimination and harassment on the grounds of race.

The Employment Tribunal (ET) upheld a claim of harassment after the employer refused to allow the claimant’s shift to finish on time to attend a wedding. They also upheld a separate claim for victimisation, after the claimant suffered a detriment following the submission of his discrimination claim.

However, they dismissed all claims of discrimination relating to Efobi’s job applications being refused, as the claimant could not clearly evidence that these rejections were due to his race.  He appealed.

The EAT decided the Equality Act 2010 did not require claimants to present a case against an employer from which, on the face of it, it could be concluded that there was a case to answer on discrimination. The Court of Appeal disagreed.

The case was eventually heard by the Supreme Court; this judgment now represents the final say in the matter. At this appeal, the claimant argued that the law had not been applied correctly by the lower courts, stating that the law does not put the burden of proof on claimants. The claimant’s argument was on the basis that the law had changed when the Equality Act 2010 replaced the Race Relations Act 1976.

The Supreme Court held that although the wording surrounding burden of proof changed when the Equality Act 2010 was introduced, the law has not changed and claimants are still obliged to provide proof of discrimination when bringing a claim to an employment tribunal.

The Court relied on the explanatory notes which accompany the Equality Act 2020, which states that “in any claim where a person alleges discrimination, harassment or victimisation under the Act, the burden of proving his or her case starts with the claimant”.

Although the Employment Appeal Tribunal found that the Equality Act 2010 did not require claimants to present a case against an employer from which it could be concluded that there was a case to answer on discrimination, this Supreme Court judgment sets a different precedent. Its decision reaffirms that the initial burden of proof in a discrimination claim is placed on the claimant. The claimant must first persuade a tribunal that, on the balance of probabilities, discrimination is likely to have occurred before the respondent will be asked to give their explanation.

Suggested Resources