Discrimination….who has the burden of proof?

In the case of Efobi v Royal Mail Group Ltd, the Claimant brought a claim of race discrimination, victimisation and harassment after being rejected from over 30 different IT roles within the Respondent over a 4-year period. The Claimant had been working as a postman but wanted a change of role within the organisation.

The Employment Tribunal (“ET”) upheld part of the Claimant’s claim – being that he had been subject to victimisation and harassment but disagreed that he had been a victim of direct discrimination. The Claimant appealed the decision in the Employment Appeal Tribunal (“EAT”), stating that the ET should have drawn adverse inference on the basis that the Respondent only provided evidence from two managers showing its general recruitment process, and not evidence from those who had specifically dealt with his applications.

Interestingly, the EAT agreed with the Claimant, and allowed his appeal.

However, the Respondent submitted a further appeal to the Court of Appeal (“CoA”), in which the CoA held that the initial judgment would stand and the Claimant’s claim for discrimination should be dismissed. The case didn’t end there however…

The Claimant appealed the CoA’s decision and took the case to the Supreme Court, which unfortunately for him, agreed with the CoA and the initial ET ruling. The Claimant argued that since the introduction of the Equality Act in 2010, the test for discrimination had changed.

Burden of proof for discrimination

Previously, under the Race Relations Act 1976, the burden of proof to evidence the fact that discrimination had occurred was specifically on the Claimant. If the Claimant was unable to do so, then their claim would fail, however if they were able to, the burden of proof would then shift to the Respondent who would have to provide evidence to the contrary.

When the Equality Act came into force, the wording was changed from “where the complainant proves facts” to “if there are facts”. It was this change of wording that the Claimant relied on as he argued that there was no burden of proof on him; rather it would be for the Tribunal to consider all of the evidence put before it and to make a decision based on that.

Adverse inferences

The second point the Claimant argued was that the Tribunal should have drawn an adverse inference from the Respondent’s decision to call to general managers with knowledge of the recruitment process, rather than those that actually dealt with his applications.

Ruling

The Supreme Court stated that the implementation of the Equality Act did not in fact change the burden of proof, nor did it eliminate the need for Claimants to prove that they have been the victim of discrimination. The Court further cited the Equality Act’s explanatory notes, which confirm that it is for the Claimant to prove that discrimination had taken place.

The Supreme Court also held that Tribunals are free to draw, or refuse to draw, adverse inferences based on the individual facts of the case and using common sense, rather than referring to previous case law. In this case, the Tribunal had decided not to draw an adverse inference, and the Supreme Court agreed with this approach.

If you require any assistance or would like any advice on discrimination issues, then please get in touch with a member of the team on 01752 663295.