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Burden of proof – discrimination

The wording which sets out the burden of proof rules in a discrimination case changed when the Equality Act 2010 brought all the laws on discrimination together in one place. The discrimination legislation previously said that if the employee proves facts which, in the absence of a reasonable explanation, the tribunal could conclude was discrimination, the burden of proof shifts to the employer who must then show that there is another, non-discriminatory explanation for their treatment of the employee. If the employee didn’t prove those facts then the claim failed. This was often referred to as the employee showing a ‘prima facie’ case. In reality, tribunals would hear all the evidence, including the employers, before deciding about whether the burden of proof shifted to the employer to explain their behaviour, not least because the employer’s evidence may completely contradict the employee’s.  The Equality Act 2010 wording is slightly different – it says where there are facts rather than where the employee proves facts, which has caused confusion and some people to think that the rules have changed. The Supreme Court has now clarified the position in Royal Mail Group v Efobi.

The employee was Black African and born in Nigeria. He had computer qualifications from two universities. He worked as a postman but sought promotion to management or IT roles which used his qualifications. He applied for over 30 jobs but didn’t get any of them. He brought a claim for race discrimination. The tribunal dismissed his direct discrimination claim, saying he had not got over the initial hurdle of proving facts which pointed to discrimination. He appealed to the EAT which said the employment tribunal had interpreted the burden of proof rules incorrectly. The EAT said the new wording meant the rules had changed – there was now no requirement for the employee to prove a prima facie case. The tribunal should hear all the evidence and decide whether the facts supported discrimination, in the absence of another explanation. The EAT also said that the employer’s failure to call any of the individuals who decided on the employee’s job applications was capable of supporting that prima facie case. The employer appealed to the Court of Appeal. The Court of Appeal said the tribunal had not applied the test wrongly and that the tribunal had had enough evidence to support its decision that the employee had not proven facts which shifted the burden of proof to the employer.

The Supreme Court said the new wording in the Equality Act 2010 had not changed the legal test. Case law showed that the tribunals had never been limited only to hearing employee evidence and could hear all relevant evidence before deciding whether the burden shifted to the employer to explain themselves. In fact, the only thing to be ignored at this stage was the employer’s explanation for the treatment. The new wording simply confirmed that well established position, rather than changing the law. The employee still bears the burden for proving facts at the first stage, but the tribunal must also consider any facts from the employer which may undermine that evidence.

This case provides welcome confirmation at the highest level that the law has not changed. The employee is still required to prove facts that support their allegations – assertions or allegations on their own will not be enough.