Burden of proof in discrimination cases


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

Mr Efobi is a black African 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 the respondent has discriminated.  It 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 disagreed restoring the findings of the employment tribunal, and the Supreme Court dismissed the subsequent appeal. 

Take note:  The Supreme Court's decision in this long-running piece of litigation 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 then shifts to the respondent to provide a non-discriminatory explanation.

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