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Discrimination and burden of proof – a new approach

The Employment Appeal Tribunal in the case of Efobi v Royal Mail Group Limited has held that there is no burden on a claimant to prove facts from which a tribunal could conclude that there had been discrimination.

Burden of Proof

Generally, in discrimination cases, the previously accepted approach to the burden of proof was that it involved a two-stage approach:

  • The claimant must firstly prove facts from which the tribunal could (absent a reason) infer that discrimination had taken place; and then
  • The burden would pass to the respondent to prove that there had been no discrimination as alleged.

Background

The Claimant worked as a postman for Royal Mail Group Ltd (Royal Mail). He made around 33 applications for internal IT roles at Royal Mail to which he attached a generic CV that included details about his country of birth (Nigeria). All of the Claimant’s applications were unsuccessful and he believed that that this was because of his race. The Claimant brought a claim in the Employment Tribunal for direct race discrimination.

At the hearing, Royal Mail called witnesses to explain that the successful candidates had longer and more relevant experience than the Claimant. However, no evidence was provided as to the race of the successful applicants and none of the decision-makers (i.e. the recruiters and hiring managers) were called to give evidence on behalf of Royal Mail.

The Decision

The Employment Tribunal held that the Claimant had failed to prove facts from which it could conclude that there had been discrimination and dismissed his claim. The Claimant appealed.

The Employment Appeal Tribunal (“EAT”) upheld the appeal and remitted the case back to a differently constituted tribunal.

The EAT held that the burden of proof provisions contained under sections 136(2) and (3) of the Equality Act 2010 do not place any burden on a claimant. It is for the tribunal to consider all of the evidence, from all sources, and to decide from that whether there are facts from which it could conclude that discrimination has occurred.

Comment

With no initial burden on the claimant to prove discrimination, employers will need to ensure that they are prepared to give sufficient evidence and reasonable explanation to the tribunal so that it can conclude at an early stage that discrimination has not occurred. In this case, the EAT was critical that Royal Mail did not call any of the decision makers to give evidence at the hearing. A tribunal may draw adverse inferences from an employer’s failure to adduce relevant evidence and any such failure will form part of the facts that a tribunal will consider. It is usually advisable to ensure that the decision makers are available to give evidence at a hearing.

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