A claimant making an allegation of discrimination at an employment tribunal must provide evidence to show they were discriminated against in the first instance, the Supreme Court has ruled.
Mr Efobi, who identifies as black African and Nigerian, claimed he had been discriminated against by Royal Mail when it rejected him for more than 30 IT and management jobs between 2011 and 2015. He has been a postman for Royal Mail since October 2011 and wanted to change roles because he held computing qualifications.
In June 2015 he launched a claim for indirect and direct race discrimination in relation to his job applications and harassment on grounds of race. He later amended his claim to include victimisation at work as a result of bringing his tribunal claim.
The victimisation and harassment claims were upheld by the tribunal, but the discrimination claims were dismissed.
Mr Efobi appealed against the tribunal’s decision, stating that it had wrongly interpreted section 136(2) of the Equality Act 2010. This part of the legislation concerns the burden of proof in discrimination claims.
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He also claimed that the tribunal should have drawn adverse inference from the fact that Royal Mail had not provided evidence from those who had dealt with his job applications – the organisation had only provided evidence showing how its general recruitment practices worked.
The Employment Appeal Tribunal allowed Mr Efobi’s appeal, but Royal Mail challenged this at the Court of Appeal.
The Court of Appeal agreed with Royal Mail that the employment tribunal had not made any error of law in its analysis of the evidence and reversed the decision of the EAT.
The case then went to the Supreme Court following an appeal by Mr Efobi. He argued that the lower courts had incorrectly interpreted the law around the burden of proof in discrimination cases. He believed the tests had changed when the Equality Act 2010 was introduced.
The Race Relations Act 1976, which was replaced by the Equality Act, said it was up to the complainant to provide evidence that they had been discriminated against. If the claimant could not provide such facts their claim failed, but if evidence was provided then the burden of proof shifted to the employer, which would then have to provide evidence to the contrary.
However, the wording surrounding the burden of proof was changed when the Equality Act was introduced. The wording was changed from “where the complainant proves facts” to “if there are facts”.
Mr Efobi argued that the change in wording changed the law and that there is no longer any burden on a claimant to prove anything at the first stage of a case and a tribunal would be required to consider all the evidence placed before it.
The Supreme Court found the law had not changed and that the change in wording simply clarified how courts already approached evidence in discrimination cases. It did not remove the need for a claimant to prove that they had been discriminated against.
The explanatory notes that accompany the Equality Act 2010 state that “in any claim where a person alleges discrimination, harassment or victimisation under the Act, the burden of proving his or her case starts with the claimant”.
It is not enough for someone to merely assert that they have been discriminated against” – Jeremy Coy, Russell-Cooke
The Supreme Court also found that the employment tribunal was not at fault for not drawing adverse inferences from the fact that the people who rejected Mr Efobi’s job applications did not provide evidence at the hearing.
Jeremy Coy, a senior associate in the employment team at Russell-Cooke, said: “The unanimous decision of the Supreme Court to reject Mr Efobi’s appeal will come as a relief for employers.
“Mr Efobi had alleged that the law does not require him to provide facts that would show, in the absence of any other explanation, that discrimination occurred. The Supreme Court disagreed and stated that facts tending to show discrimination will need to be provided for employment tribunals to consider whether such discrimination had occurred. It is not enough for someone to merely assert that they have been discriminated against.
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“It’s a general principle of civil law that claimants must provide evidence that shows, on the balance of probabilities, that their allegations are well founded. This decision reinstates the initial understanding of the burden of proof in discrimination cases. A claimant must first show facts that would tend to show discrimination had occurred and it will then be for an employer to provide evidence to show otherwise.”
