The Burden of Proof in Employment Discrimination Cases

The UK’s Supreme Court has ruled that Royal Mail does not have to face claims that it racially discriminated against an employee who was repeatedly denied a promotion. The UK’s top court has said the burden was on the employee to prove his claim rather than Royal Mail to show that race and ethnicity played no part in its decision.

Mr Efobi worked as a postman for Royal Mail. He was born in Nigeria and identified as a black African and Nigerian. With qualifications in computing, Mr Efobi wished to obtain a managerial or technical role at Royal Mail. He applied for over 30 jobs between December 2011 and February 2015 but was unsuccessful. In June 2015, Mr Efobi brought a claim against Royal Mail in the employment tribunal alleging that his job rejections were due to discrimination because of his race. The Supreme Court dismissed Mr Efobi’s discrimination claims, but an appeal succeeded on the grounds that they had wrongly interpreted a section of the Equality Act 2010 that deals with the burden of proof in discrimination cases. The Supreme Court then dismissed Mr Efobi’s appeal.

This appeal has raised two questions of law. Firstly, has a change in the wording of equality legislation altered the burden of proof in employment discrimination cases? Secondly, when may a tribunal draw inferences from the absence of a potential witness?

Burden of proof

Previous legislation, replaced by the Equality Act 2010, imposed a two-stage test in discrimination cases. The first stage saw the claimant burdened with proving facts from which the tribunal could conclude that an unlawful act of discrimination had been committed. The burden then shifted to the employer to explain the reason for their treatment of the claimant and to satisfy the tribunal that race had not played a part.

In the 2010 Act, the wording relating to the first stage changed from “where…the complainant proves facts” to “if there are facts from which the court could decide”. Mr Efobi had argued that this change in wording changed the law so that it was no longer a burden on the claimant to prove anything at the first stage and the tribunal would consider all evidence placed before it neutrally.

The Supreme Court rejected this stating there had been no substantive change in the law. The previous legislation had been interpreted so that tribunals were required at the first stage to consider all evidence. It is thus still the law that the burden does not shift to the employer to explain the reasons for its treatment of the claimant unless the claimant can prove the matters they wish the tribunal to find as facts from which an unlawful act of discrimination can be inferred.

Drawing adverse inferences

During the hearing, Royal Mail did not call any of the individuals who dealt with Mr Efobi’s unsuccessful job applications as witnesses. They instead relied on evidence given by two managers who were familiar with the recruitment process and how decisions on applicants were made. Mr Efobi argued that inferences should have been drawn from the fact that none of the actual decision-makers gave evidence.

The Supreme Court emphasises that the tribunals are free to draw inferences in the case before them using their common sense. Relevant considerations should be made when deciding whether to draw an adverse inference from the absence of a witness such as whether they were able to give evidence and what evidence they may have given.

If you would like to speak to a member of the Spire Employment team about discrimination in the workplace or if you would like to discuss any points in this article, please contact us on 01603 677077.