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.