15 August 2017

In Efobi v Royal Mail Group Ltd, the Employment Appeal Tribunal was asked to consider the burden of proof provisions in a discrimination case. These are the rules found in statute – section136 of the Equality Act 2010 - which guide Tribunals in making findings in fact as to whether or not discrimination has been established in evidence.

The orthodox position that was understood to apply (which stemmed from previous legislation) was that the Claimant had to bring evidence from which at least an inference of unlawful discrimination could be drawn, i.e. there has to be a 'prima facie' case of discrimination. If the Claimant had not done so, it was not for the Respondent to show that no discriminatory conduct took place.

The Respondent adopted a “risky” approach in the evidence it led before the Tribunal. Mr Efobio was a postman who had applied for an IT job on more than 30 occasions. He argued that his applications were rejected because he was a black African born in Nigeria. In dealing with the race discrimination claims, the Employment Tribunal held he had not proved facts from which an inference of discrimination could be made. There was no evidence before the Tribunal as to the racial and national origins of the successful candidates and the Respondent had brought evidence that showed the Claimant did not display the necessary skills.

The Employment Appeal Tribunal looked carefully at the statutory wording which says that:

“If there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred… That section does not apply if A shows that A did not contravene the provision.”

The Employment Appeal Tribunal decided that the wording used by Parliament places no burden on the Claimant to show anything. Instead the Tribunal must hear and consider all the evidence, from all sources – Claimant and Respondent – and then decide whether or not there are facts from which it can infer unlawful discrimination. If there are such facts, and no explanation from A showing the absence of unlawful discrimination, the Tribunal must uphold the claim.  If a Respondent decides not to lead evidence about matters within its knowledge (such as the racial and national origins of successful applicants), it runs the risk that adverse inferences are made.

The Employment Appeal Tribunal noted that the Explanatory Notes to the legislation suggests that the Claimant does have a burden to discharge but ultimately it is the words of the statute which the Tribunal must apply. 

In this particular case the Employment Tribunal had assumed that the Claimant “had to get to first base” and bore the initial burden of proving a prima facie case of unlawful discrimination. The Employment Appeal Tribunal was not therefore satisfied that the Employment Tribunal had not required the Claimant to “prove things that he was neither required, nor able, to prove” and that the Tribunal ought to have considered all the evidence in the round upon conclusion of the Hearing.

The claims were remitted to a differently constituted Employment Tribunal to decide whether or not the race discrimination claims were established on the evidence that had been led.

This is an important case that reminds everyone who appears before an Employment Tribunal to check what the statutory wording actually says. Simply assuming the position is as it has always been is a dangerous strategy. The Employment Appeal Tribunal noted that the established authorities appeared to suggest the Claimant required to bring forth evidence of prima facie discrimination despite this being based on previous statutory provisions. The decision is also a stark reminder to ensure those appearing before Tribunals carefully consider what evidence is needed to satisfy the Employment Tribunal as to the legal tests. While this issue may appear to be academic or hypothetical, in reality the rules about burden of proof can be pivotal in practice and should always be considered. Give your BTO employment law expert a call to discuss! 

The judgement can be read here.

To discuss further please contact one of our BTO employment lawyers on 0141 221 8012.