Discrimination: Does the claimant bear the burden of proof?

The Supreme Court has confirmed that the burden of proof remains on the claimant at stage one to establish a prima facie case of discrimination

In a judgement made on 23^rd July 2021 in the case of Royal Mail Group Ltd v Mr Efobi the Supreme Court considered whether a change in the wording of equality legislation had altered the burden of proof in employment cases where discrimination is alleged.

Summary

Mr Efobi, a black Nigerian and citizen of Ireland, holds graduate and post-graduate qualifications in information systems. He unsuccessfully applied for over 30 IT-related roles when employed as a postman. He brought various claims of discrimination and called two witnesses at employment tribunal, both of whom were familiar with the company’s recruitment process but neither of whom had been involved in the decision not to recruit Mr Efobi. The tribunal accepted that the successful candidates were more qualified for the roles and that Mr Efobi had not proved facts from which the tribunal could conclude that discrimination had influenced the hiring decision.

Mr Efobi appealed to the EAT which looked at the wording of the Equality Act 2010 on the issue of burden of proof, which had changed from ‘where the complainant proves facts’  to ‘if there are facts’. The EAT found that the employment tribunal should have considered all the evidence, not just Mr Efobi’s, and that because the respondent did not call any of the decision-makers or provide evidence of the ethnicity of the candidates who were hired, other evidence was available which may have meant the burden of proof was satisfied.

The Court of Appeal overturned the EAT’s decision and the Supreme Court agreed that the burden of proof remains on the claimant at stage one to establish a prima facie case of discrimination. In this respect the altered wording in the Equality Act did not make a substantive change to the law.

Comment

Had the Supreme Court concurred with the EAT and upheld its view that the change in wording of the Equality Act shifted the burden of proof, employers would have found future discrimination cases particularly challenging to defend. They would have found themselves having to disprove claims of discrimination where potentially no facts existed. The Supreme Court’s view that claimant still has to bear the burden of proof will therefore be a welcome one for employers.

For expert advice and individualised guidance on employment law issues affecting you or your business contact Richard Port at rport@boardside.co.uk or call 0330 0949338