The Supreme Court has delivered a unanimous judgment, maintaining the status quo, that the initial burden of proof in discrimination claims is with the Claimant. 

The question of burden of proof arose from the different wording in the Equality Act 2010 which replaced previous discrimination legislation. (Royal Mail Group Ltd v Efobi).  

BACKGROUND

Mr Efobi worked as a postman for the Royal Mail.  A citizen of the Republic of Ireland, he was born in Nigeria and identifies as black African and Nigerian.  He holds university qualifications in computing and, wishing to move into a management or IT role, he applied for over 30 such roles with the Royal Mail.  None of his applications was successful.  Mr Efobi brought a claim, inter alia, for direct race discrimination which the tribunal dismissed.  He was successful on appeal to the Employment Appeal Tribunal on the basis that the tribunal had wrongly interpreted the law on the burden of proof in discrimination cases.  That decision was overturned in the Court of Appeal and it was appealed in the Supreme Court.

DECISION

The Equality Act 2010 imposes a two stage test.  First, the Claimant has the burden of proving facts from which the tribunal can conclude, in the absence of an adequate explanation, that unlawful discrimination has occurred.  If the Claimant proves those facts, the burden then shifts to the employer to explain the reason for the treatment and to satisfy the tribunal that discrimination played no part.  The change in wording from "where the complainant proves facts" to "if there are facts from which…" did not change the law. The wording was changed to clarify that a tribunal could consider evidence from all sources during the first stage not just evidence from the Claimant.  The initial burden of proof remains with the Claimant.

The Supreme Court also offered guidance on drawing adverse inferences from the facts of the case.  The context in this case was drawing adverse inferences from the fact that the Royal Mail did not call the actual decision makers responsible for rejecting Mr Efobi's applications, instead they called two managers who were familiar with the recruitment process and how appointments were made generally.  It held that tribunals should be free to draw inferences from the facts using common sense rather than referring to any legal rules.  Whether any adverse inference should be attached to the absence of a witness depends on the particular circumstances and the context of the case as a whole.

IMPLICATIONS

The outcome in this case is not unexpected but it nevertheless provides helpful clarification of the law and a reassertion that the conventional approach to the burden of proof in discrimination claims remains unchanged by the Equality Act 2010.  This approach also generally strikes a fair balance between the competing interests of the two parties and while it is an important case it also means that it's business as usual for practitioners.