Burden of proving discrimination

Efobi v Royal Mail Group Ltd

In a radical departure from accepted wisdom and practice, the EAT has held that employees don’t have to establish a prima facie case of discrimination before the burden of proof ‘shifts’ to the employer.

Background and tribunal decision

Discrimination is often covert and this presents particular problems of proof for an employee.

Until this case, it was understood that there was a two-stage burden of proof (s. 136 of the Equality Act). 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. Such an approach was specifically endorsed by the Court of Appeal in the 2005 case of Igen v Wong.

This case involved a postman, Mr Efobi, who’d applied unsuccessfully over 30 times for IT roles within 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. Royal Mail however had 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.

EAT decision

Allowing his appeal, the EAT held that the s. 136 doesn’t require a claimant to prove anything at stage 1. Rather, it requires the tribunal to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not there are facts from which it can infer discrimination. If there are such facts, and no explanation from the employer, the tribunal must uphold the complaint. It may therefore, said the EAT, be misleading to refer to a shifting burden of proof at all.

How did the EAT reach this conclusion? Firstly, it went back to the words of the statute itself. While the Explanatory Notes to the Equality Act state that ‘the burden of proving his or her case starts with the claimant’, this only illustrates the government’s view of what a statute means. However only the language of the statute can be used to deduce the will of Parliament.

Secondly, while the EAT’s approach here differed from that of Igen v Wong, that case concerned the predecessor legislation which was differently worded and did place an initial burden of proof on claimants. The wording had been changed in s. 136 and no appeal court had yet had the chance to consider this point.

Thirdly, while acknowledging that its interpretation went further than required by the EU Directive (which provides that employers should be required to prove that there has been no breach of the principle of equal treatment where the claimant has ‘establish[ed] facts from which it may be presumed that there has been direct or indirect discrimination’), the EAT pointed out that another part of the Directive allows member states to introduce rules of evidence which are more favourable to plaintiffs.

Applying these principles, the EAT held that the tribunal had misdirected itself (in that it appeared to have required Mr Efobi ‘to prove things that he was neither required, not able to, to prove’) and sent the case to be reheard by a different tribunal.

As a fall-back position, the EAT said that even if the correct interpretation of s. 136 is that it does place the burden of proof on claimants at the stage 1, tribunals are still obliged to consider all the evidence (and not just the evidence adduced by claimants) at stage 1 to determine whether or not the employee has proved facts that require an explanation from the employer.

Link to judgment: http://www.bailii.org/uk/cases/UKEAT/2017/0203_16_1008.html


Now such a technical, statutory interpretation case is one we wouldn’t normally include for an HR readership. But this decision has potentially very significant practical impacts.

It is now unlikely that a tribunal will dismiss any discrimination case on the basis of no case to answer because it is obliged to look at all the facts in the round. Here the employer didn’t call the alleged discriminators to give evidence and did not disclose documents or relevant data (the racial breakdown of the workforce). An employer adopting such a stance in the future runs the very real risk that the employee will succeed in their claim.