A discrimination tribunal case earlier this month made an important decision on the ‘burden of proof’ provisions in the Equality Act 2010. These give the benefit of the doubt to the claimant in certain parts of discrimination claims and they are a cornerstone of the discrimination regime.

The claimant in this case was a postman. He had graduate and post-graduate level qualifications in IT and had applied unsuccessfully for over 30 IT-related jobs within the Royal Mail. He believed that the rejections were due to a case of direct discrimination on the grounds of race.

The burden of proof part of the Equality Act provides that if there are facts which suggest discrimination (in the absence of any other explanation) then it becomes for the respondent to prove that it did what it did because of non-discriminatory reasons.

The explanatory notes to the Act say “the burden of proving his or her case starts with the claimant.  Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act”. The Act itself says that the burden in a discrimination tribunal case passes “if there are facts from which the tribunal could decide, in the absence of any other explanation, that discrimination has occurred”.

The Employment Appeal Tribunal (EAT) held that the Employment Tribunals have been getting the law wrong since 2010. When this happens at the employment tribunal, the parties have to get a new ruling from the employment tribunal, which sometimes means another trial. Tribunals have been relying on a two-stage test from the previous case of Igen v Wong which was decided under previous discrimination legislation. Employment solicitors have treated this as sound law for many years, even after the Equality Act regime took over.

The EAT acknowledged that s136(2) is clear and does not require the claimant to prove anything at the beginning. Instead, the tribunal must consider all the evidence, from all sources, so as to make a decision on the facts ‘as a whole’. These sources could be the documents available at trial, witness evidence, well-known facts or common sense inferences, even if none of the lawyers in the case thought it was important.

So, it is probably no longer sensible to talk about the burden of proof in a discrimination tribunal case being the claimant’s in the first instance.

The EAT said that an effect of this case is that submissions of no case to answer (i.e that the claimant has failed to get over the first hurdle by the half-way point of the trial) are now effectively a thing of the past. This is because what the respondent says also feeds into the question of whether the claimant has discharged the ‘burden of proof’. Employers should now be even more careful to call relevant evidence when defending discrimination claims. In this case, the respondent had not volunteered any evidence about the race or national origins of the successful job applicants. Nor had it brought the recruiting managers as witnesses. So it was not in a good position to defend the claim.

The logic behind the decision results in this case being an important authority on how to correctly adhere to s136(2) which plays a vital role at the heart of many discrimination cases. This outcome is solely because the wording of the Equality Act 2010 is different from what the old legislation used to say. We don’t think that this difference was intended by the House of Commons when they passed the Equality Act.

This decision could ensure that future tribunals place a responsibility on the respondent to give evidence in discrimination tribunal cases, which will no doubt give some claimants the edge.

Case report: Efobi v Royal Mail Group Ltd
By Ryan Wheatley