Burden of proof in discrimination cases


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The Court of Appeal has held that the Employment Appeal Tribunal (EAT) was incorrect to hold that there is no initial burden of proof on a claimant in a discrimination claim in Efobi v Royal Mail Group Ltd.

Mr Efobi is Black African and born in Nigeria. He worked as a postman for Royal Mail Group Ltd but attempted, unsuccessfully, on 33 different occasions to secure an IT-related role. He believed that he had been unsuccessful because of his race and brought a claim for direct race discrimination.

Around six recruiters and two hiring managers were involved in Mr Efobi's unsuccessful applications, but Royal Mail did not call any of them to give evidence at the tribunal hearing. At first instance the tribunal accepted the evidence of the witnesses Royal Mail did call that the successful candidates all had significantly longer and more relevant experience than Mr Efobi and produced more detailed and relevant CVs. It held that it was for Mr Efobi to prove facts from which it could conclude that there had been discrimination, and dismissed his claim. The EAT remitted the case back to a differently constituted tribunal for rehearing, holding that there is no burden on claimants to prove facts from which a tribunal could decide that a respondent has discriminated. The EAT held that it was up to the tribunal to consider all the evidence, not just from the claimant, but from all sources, at the end of a hearing in order to decide whether or not there are facts from which it could conclude that discrimination has occurred.

The Court of Appeal restored the findings of the employment tribunal. This decision, following that in Ayodele v Citylink Ltd and another (which was reported last year), restores the orthodox understanding of the burden of proof in discrimination claims. The claimant has the initial burden of showing a prima facie case of discrimination and, if they do, the burden shifts to the respondent to provide a non-discriminatory explanation.

Take note: Although the decision in Efobi provides welcome clarification, in practice it is unusual for cases to stand or fall on the application of the burden of proof. Generally, having heard all the evidence, tribunals can decide the reason why a respondent acted as it did, without recourse to the burden of proof.

This article is taken from HR Law - February 2019.

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