The Burden of Proof in Discrimination Cases

blog-publish-date

05 Sep 2017

blog-read-duration

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.

Free to Download Employer Resources

  • Bribery Risk Assessment Form

    FREE DOWNLOAD

    Bribery Risk Assessment Form

    Read more
  • The Good Work Plan 2020

    FREE DOWNLOAD

    The Good Work Plan 2020

    Read more
  • Expert View - Non-Compliant Contract

    FREE DOWNLOAD

    Expert View - Non-Compliant Contract

    Read more
  • BLOG

    Case Law Update: Gray v Mulberry Comp...

    The Court of Appeal has upheld earlier decisions that an employee’s belief in th...

    Read more
  • BLOG

    Mythbuster – Political Burnout Won’t ...

    The UK is getting ready for its third general election in four years. Hanging ov...

    Read more
  • BLOG

    Working Time Regulations

    Read more
  • REC

    CASE STUDY

    REC

    The events are brilliant. Amanda Chadwick, one of the expert speakers, is a very

    Read more
  • Grantley Hall

    CASE STUDY

    Grantley Hall

    Whenever we have a sensitive issue - sometimes involving individuals with protec

    Read more
  • Lady Heyes Holiday Park

    CASE STUDY

    Lady Heyes Holiday Park

    Overall it's definitely had a noticeable impact on the business and how I perfor

    Read more

Do you have any questions?

Get a free callback from one of our regional experts today