Opinion

Initial burden of proof - Claimants in discrimination cases

24th October 2017

In Efobi v Royal Mail Group Limited, the claimant applied internally for 30 IT jobs within the Royal Mail and each application was unsuccessful. The claimant brought claims of discrimination on the grounds of race following the unsuccessful applications.

The Claimant was employed as a postman for Royal Mail and held qualifications at degree (undergraduate and postgraduate) and diploma level in IT and forensic computing. During the application process, applicants were required to provide details of their town and country of birth. The Claimant was longlisted twice and shortlisted once but was ultimately unsuccessful. The Claimant therefore claimed that the Royal Mail discriminated against him by way of their continuous decisions to reject his application.

The Employment Tribunal stated that no evidence was adduced as to the race of the candidates that were successful. As a result, the ET was unable to make any findings on whether they could be used as comparators. The ET therefore held that the claimant had not provided facts that Royal Mail knew of his protected characteristic. The ET commented that the claimant should have proved facts from which it could conclude that there was discrimination. The ET reasoned that the claimant had not discharged the burden of proof so as to shift the burden to Royal Mail. The claimant appealed the decision to the Employment Appeal Tribunal.

The EAT however, commented that section 136 Equality Act 2010 did not impose a burden of proof on the claimant. Section 136 requires a tribunal to consider all of the evidence and not whether the claimant can establish a case for discrimination. The EAT remitted the case to a fresh employment tribunal to be reheard.

Employer Considerations

Section 136 EA 2010 governs the rules surrounding the burden of proof in cases of discrimination. It is often referred to as a “two stage test” and is worded as follows:

"(2) If there are facts from which the court [or tribunal] 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.

(3) But subsection (2) does not apply if A shows that A did not contravene the provision."

Efobi now appears to confirm the fact that section 136 EA 2010, does not place any burden on the claimant to prove the facts. Instead, a tribunal is now required to consider all of the evidence from all sources (not just the claimant) in order to decide whether there are any facts from which it could conclude that discrimination has occurred. If a tribunal find facts that could lead it to conclude that discrimination has occurred and the respondent is unable to offer any reasonable explanation, the tribunal will be likely to find that discrimination has occurred.

 

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