Who bears the burden of proof in discrimination claims?

The Supreme Court has recently handed down its judgment in the case of Royal Mail Group Ltd v Efobi. The case focused on whether the claimant or the respondent bears the burden of establishing the presence of discriminatory conduct, under section 136 of the Equality Act 2010.

This is an important case from a legal perspective, because the party who has the burden of proof in any case is the party who must – at least initially – satisfy the Tribunal that there are facts to support either the claim, or the defence.

Mr Efobi is a black Nigerian and Irish citizen, who held both graduate and post-graduate qualifications in computing. From 27 August 2013 he was employed as a postman by Royal Mail. Mr Efobi made over 30 applications for management or IT positions within Royal Mail on various dates between 30 December 2011 and 3 February 2015, without success.

In June 2015 Mr Efobi began proceedings against Royal Mail in the Employment Tribunal (“ET”), as he considered that he had been discriminated against on the grounds of his race, based on the failed applications.

However, the ET found that Mr Efobi had failed to establish that there was direct discrimination in the way in which Royal Mail dealt with his job applications. Absent any evidence that those who were recruiting knew of Mr Efobi’s race or national origins, the ET dismissed the claim.

However, on appeal by Mr Efobi, the Employment Appeal Tribunal (“EAT”) held that the ET had erred in its analysis of that issue. It found that the Equality Act had – in effect – amended the previous legislation, which had provided the burden of proof was on the claimant to prove the prima facie case. Instead, a tribunal would require to consider all the evidence, not just the claimant’s. This seemed to be a significant departure from the understood position and, unsurprisingly, led to this decision being appealed.

Subsequently, the Court of Appeal held that the ET had not made any error of law in its analysis of the evidence and accordingly reversed the decision of the EAT.

The Supreme Court has upheld this decision, and found that there is still a requirement on the claimant in a discrimination case to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination.

It is only once a claimant has successfully discharged this burden, that the employer is then required to explain the reason for its treatment of the claimant.