Skip to main content
CLOSE

Charities

Close

Corporate and Commercial

Close

Employment and Immigration

Close

Fraud and Investigations

Close

Individuals

Close

Litigation

Close

Planning, Infrastructure and Regeneration

Close

Public Law

Close

Real Estate

Close

Restructuring and Insolvency

Close

Energy

Close

Entrepreneurs

Close

Private Wealth

Close

Real Estate

Close

Tech and Innovation

Close

Transport and Infrastructure

Close
Home / News and Insights / Blogs / Employment Law / 71: Employment Appeal Tribunal decision changes burden of proof in discrimination claims

In Efobi v Royal Mail Group Limited, the Employment Appeal Tribunal (EAT) has ruled that the Equality Act 2010 does not impose an initial burden of proof on a claimant in a discrimination claim which must be met before the burden shifts to the respondent.

This conflicts with established guidance in previous case law, but those cases concerned differently-worded burden of proof provisions in legislation which predated the Equality Act.

Mr Efobi, who is originally from Nigeria, was employed by Royal Mail as a postman, but had graduate and post-graduate qualifications in IT. He applied unsuccessfully for over 30 IT-related jobs with Royal Mail. Mr Efobi believed that his applications failed because of his race and brought several claims in the Employment Tribunal, including a claim of direct race discrimination.

Royal Mail’s case was that Mr Efobi’s CV did not demonstrate that he had the required skills for the positions he had applied for, whereas the successful candidates had produced detailed and relevant CVs. Mr Efobi did not produce evidence of the race of the successful candidates, or that Royal Mail’s recruiters knew that he was Nigerian. Applying the Court of Appeal’s guidance in the 2005 case of Igen Ltd v Wong, the Employment Tribunal concluded that Mr Efobi had not proved facts from which it could conclude that there had been discrimination, and his claim was dismissed.

However, the EAT upheld Mr Efobi’s appeal. Noting that Igen v Wong was decided under previous discrimination legislation, the EAT held that the Equality Act does not place any initial burden of proof on a claimant, but requires a Tribunal to consider all the evidence, from all sources. The Tribunal must then decide at the end of the hearing whether or not there are facts from which it can conclude that discrimination has occurred. If there are facts and no reasonable explanation is offered by the employer, the Tribunal must find that discrimination has occurred. Mr Efobi’s claim was remitted to a different Tribunal for a re-hearing.

Employment Tribunals will now have to look at the evidence from all parties, not just the claimant and then decide whether there are facts from which it can conclude that discrimination has occurred. An employer’s failure to produce relevant evidence of a non-discriminatory motive may therefore lead to a Tribunal drawing inferences of discrimination which may form part of these facts. This highlights the importance of properly documenting and justifying decisions which could be the subject of discrimination claims.

Related Articles

Our Offices

London
One Bartholomew Close
London
EC1A 7BL

Cambridge
50/60 Station Road
Cambridge
CB1 2JH

Reading
The Anchorage, 34 Bridge Street
Reading RG1 2LU

Southampton
Grosvenor House, Grosvenor Square
Southampton SO15 2BE

 

Reading
The Anchorage, 34 Bridge Street
Reading RG1 2LU

Southampton
Grosvenor House, Grosvenor Square
Southampton SO15 2BE

  • Lexcel
  • CYBER ESSENTIALS PLUS

© BDB Pitmans 2024. One Bartholomew Close, London EC1A 7BL - T +44 (0)345 222 9222

Our Services

Charities chevron
Corporate and Commercial chevron
Employment and Immigration chevron
Fraud and Investigations chevron
Individuals chevron
Litigation chevron
Planning, Infrastructure and Regeneration chevron
Public Law chevron
Real Estate chevron
Restructuring and Insolvency chevron

Sectors and Groups

Private Wealth chevron
Real Estate chevron
Transport and Infrastructure chevron