The Burden of Proof in Discrimination Cases

By Nicola Mullineux
05 Sep 2017

The case of Efobi v Royal Mail Group Limited UKEAT/0203/16/DA

During Employment Tribunal discrimination cases, it has been widely thought that when an individual makes allegations of discrimination at an Employment Tribunal, the initial burden of proof rests with them, in that they first have to establish to the Employment Tribunal that there is a ‘prima facie’ case of discrimination, in which there are facts that the Tribunal could infer discrimination took place.

If this is established, the burden of proof was thought to ‘shift’ to the employer, to show the non-discriminatory reason for this conduct. However, in the recent case of Efobi v Royal Mail Group Limited, the Employment Appeal Tribunal (“EAT”), has clarified what the burden of proof is in discrimination cases under the Equality Act 2010 (“the Act”).

The facts of the case were that Mr Efobi worked for the Royal Mail as a postman. During his employment, Mr Efobi applied in excess of 30 times for positions in the company’s IT department, on all of these occasions his applications were unsuccessful. Therefore, Mr Efobi issued a claim at the Employment Tribunal alleging that the reason for his rejection was due to the fact he was a black African.

The Employment Tribunal found that there had not been any discrimination on the basis that he had not established facts which an Employment Tribunal could infer discrimination had taken place. Mr Efobi had not provided any evidence of those applicants who were successful in relation to what their race or ethnic origin was. However, the Royal Mail had produced evidence to show the reason for the success of applicants was due to their technical skill and experience, which Mr Efobi did not have. Therefore, Mr Efobi appealed to the EAT. The EAT found that the Employment Tribunal had erred in their application of the law with regard to the burden of proof and what a Claimant is required to establish.

The burden of proof outlined in the Act outlined, “if there are facts from which the Court could decide, in the absence of any other explanation” that discrimination had occurred, then the Court must hold that it did. Therefore, the EAT considered that the Act did not put any initial burden of proof on the Claimant to discrimination.

The Act provides that a Court should consider all the evidence, from all the sources, in order to establish whether there were facts which they could infer discrimination took place. If there are facts which infer discrimination and the employer does not provide an explanation, then the Court should find that discrimination occurred.

The EAT did accept that this is not the application which has previously been widely understood in discrimination cases and cited various historic case law. However, the EAT noted that these cases were decided under the old legislation and not under the current Act. The EAT therefore found that the Employment Tribunal had misdirected itself and could not be confident that the Tribunal had required Mr Efobi to “prove things that was not neither required, nor able, to prove”. Therefore, the EAT remitted the case back to the Employment Tribunal with a different panel to decide Mr Efobi’s claim. Therefore, this case has updated what an individual needs, or does not need, to establish in employment Tribunal Discrimination cases in light of the Equality Act 2010.

About the Author

Nicola Mullineux

Nicola Mullineux, as Group Content Manager, leads a team of employment law content writers who produce guidance and commentary on employment law, case law and key HR developments. She has written articles for national publications for over 10 years and regularly helps to shape employment of the future by taking part in Government consultations on employment law change.


Nicola Mullineux

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