The Supreme Court has issued a judgement that a claimant making an allegation of discrimination at an Employment Tribunal must provide evidence that they were discriminated against in the first instance – essentially clarifying that the burden of proof is on the claimant.
The ruling came during a case brought by Mr Efobi against his employer the Royal Mail. Mr Efobi - who identifies as black African and Nigerian - had worked as a postman for the company since October 2011. He held computing qualifications and wanted to change roles and so applied for IT and management jobs between 2011 and 2015.
After being rejected for around 30 roles during this time, 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. Mr Efobi later amended the claim to include victimisation at work as a result of bringing his tribunal claim.
The victimisation and harassment claims were upheld by the initial Employment Tribunal, but the discrimination claims were dismissed on the basis that there was no evidence that the Royal Mail’s actions were linked to his race.
Following this, Mr Efobi appealed to the Employment Appeal Tribunal, stating that the Employment Tribunal wrongly interpreted section 136(2) of the Equality Act 2010, which concerns the burden of proof in discrimination cases.
Mr Efobi also claimed that the Tribunal should have drawn adverse inference from the fact that Royal Mail had not provided evidence from anyone who had dealt with his job applications, only about 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 then 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 Employment Appeal Tribunal.
Following this, permission to appeal to the Supreme Court was then granted. However, this found that the change in wording - when the Race Relations Act 1976 was replaced by the Equality Act 2010 - did not amount to a change in the law and therefore it still requires a claimant to prove that they had been discriminated against and it is not enough for them to merely assert that they have been discriminated against.
Of the decision, Jeremy Coy, a Senior Associate in the employment team at Russell-Cooke, said:
“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.”
