Employment Law Cases

Discrimination and the burden of proof

Royal Mail Group Ltd v Efobi

The burden of proof remains on a claimant in a discrimination case to prove, on the balance of probabilities, facts from which (absent any other explanation) a tribunal could infer that an unlawful act of discrimination had taken place. The change in wording to the balance of proof provisions in the Equality Act 2010 did not introduce a substantive change to the law.

Discrimination is often covert and this presents particular problems of proof for an employee. The Equality Act 2010 deals with the burden of proof in s. 136. This encompasses a two-stage test. At stage 1 a claimant must prove facts from which a tribunal could infer that discrimination has taken place. Only if such facts have been established does stage 2 come into play where the burden ‘shifts’ to the employer to prove that the treatment in question wasn’t in any way related to the protected characteristic.


Mr Efobi, a postman, applied unsuccessfully over 30 times for IT roles within Royal Mail. All the applications were handled by external recruiters working under the direction of a hiring manager from Royal Mail. He brought a claim of direct race discrimination. Rejecting his claim, the tribunal held that he hadn’t got past stage 1, i.e. proved facts from which it could conclude that there’d been discrimination. No decision makers were called as witnesses. Royal Mail had however made out its reasons for rejecting his applications (while he was technically qualified, his CV didn’t set out the required skills for the jobs applied for). Mr Efobi appealed, arguing that the tribunal had got the law wrong on the burden of proof.

The EAT allowed his appeal, holding that the tribunal had misconstrued s. 136. When the previous anti-discrimination legislation was consolidated into the Equality Act 2010, the change in the wording regarding the burden of proof meant, held the EAT, that the proper approach was for a tribunal to consider all the evidence (not just that of the claimant) and then decide whether there were facts from which it could conclude that discrimination had occurred. It also criticised Royal Mail’s failure to call any of the decision makers to give evidence. The Court of Appeal allowed Royal Mail’s appeal: the position under the Equality Act was no different from that under the previous legislation and the burden of proof remains on a claimant to make out a prima facie case of discrimination. Indeed, it was bound to do so based on a previous Court of Appeal decision, Ayodele v Citylink Ltd. Mr Efobi appealed again to the Supreme Court.

Supreme Court decision

The appeal was unanimously dismissed.

There had been no substantive change in the law between the introduction of the Equality Act 2010 and the previous legislation. As a court or tribunal may only find fact if it is admitted or proven by evidence to be more likely than not, the burden could not shift to the employer to explain the reasons for the treatment suffered by the claimant unless the claimant is able to convince the court, on the balance of probabilities that in the absence of any other explanation, an unlawful act of discrimination has occurred.

As to the tribunal’s refusal to draw adverse inferences from Royal Mail’s failure to call any decision makers as witnesses, the Supreme Court emphasised that tribunals should be free to draw, or decline to draw, inferences in a case before them using their common sense. Relevant considerations will naturally include whether the witness was available to give evidence, what evidence the witness could have given, what other evidence there was bearing on the points on which the witness could have given evidence, and the significance of those points in the context of the case as whole. How such matters should be assessed cannot be encapsulated in a set of legal rules.

There was nothing to suggest that the tribunal had precluded drawing adverse inferences from the fact that Royal Mail failed to call any of the actual decision makers as witnesses. It appeared to the Supreme Court that the tribunal simply had not drawn any adverse inferences from that fact. In any event, the court held that even if the tribunal had drawn adverse inferences, such a conclusion would not without more have been sufficient for it to conclude that in the absence of any other explanation, Mr Efobi had suffered discrimination.

Link to judgment: https://www.bailii.org/uk/cases/UKSC/2021/33.html


Had the Supreme Court endorsed the EAT’s decision it would have had a potentially very significant practical impact. Tribunals would have been unlikely to dismiss any discrimination case on the basis of no case to answer because it would have been obliged to look at all the facts in the round. The Supreme Court’s decision reasserts the orthodox position with which most practitioners were well acquainted - and is generally considered to strike the right balance between employees and employers in discrimination cases.