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Rethinking the burden of proof in Direct Discrimination claims

In a recent decision that will have important repercussions for many direct discrimination claims under the Equality Act 2010, the EAT has held that the concept of the “shifting burden of proof” is not legally correct. We take a closer look at the decision in Efobi v Royal Mail Group LtdUKEAT/0203/16/DA and the consequences for direct discrimination claims, both for employers facing these claims, and the employees bringing them.

The Facts in Efobi v Royal Mail

Mr Efobi worked for the Royal Mail as a postman but had applied for other roles more aligned with his qualifications, mostly in IT. He had been consistently rejected from these posts. Mr Efobi had misunderstood the application process and had applied as an external candidate even though he was already working for Royal Mail. His town and country of birth (Nigeria) were included on the application forms. There was extensive evidence about the application process for the roles concerned, but the Royal Mail did not submit any evidence about the race or ethnic origin of successful candidates for those roles. Although Mr Efobi submitted evidence about his qualifications and the Tribunal found that he was highly qualified, was of Black African origin, and the recruiters concerned would have access to this information, the Tribunal found that Mr Efobi had not satisfied them that there were “…facts from which we could conclude that there was discrimination” (para 4.2 ET decision). The Employment Tribunal rejected the claims of direct discrimination brought in respect of the failed job applications, although claims of harassment and victimisation were upheld. It was the decision on direct discrimination that was the subject of the appeal.

Doubting the “shifting burden of proof”

When considering the claims of direct discrimination, the Tribunal used the well-known test set out in Igen v Wong in which the Court of Appeal held that the s.63A of the Sex Discrimination Act 1975 demanded a 2-stage test to prove direct discrimination –

  1. It was for a claimant to establish facts that would allow the tribunal to decide that an act of unlawful discrimination had taken place, in the absence of an explanation by the respondent
  2. Once those facts were established it was for the respondent to prove that discrimination did not take place.

This has been referred to as the “shifting burden of proof” – that it is for the claimant to establish a prima facie case and only once this is done must the respondent prove that there was no unlawful discrimination. It had been thought that the Equality Act 2010 applied this test to all direct discrimination claims. The Tribunal found that Mr Efobi had not established the facts that would allow it to decide that the failed job applications were the result of unlawful discrimination in the absence of any other explanation by Royal Mail. The EAT considered that this approach, requiring the claimant to establish the prima facie case, was incorrect. – The 2- stage test in Igen v Wong related, as we have already mentioned, to legislation which predated the Equality Act 2010. The wording of section 136 of the Equality Act 2010 is, in the EAT’s view, significantly different to that of s. 63A SDA 1975. – There was no requirement ona claimant under s. 136 to establish a prima facie case of discrimination – rather that the tribunal had to consider whether there are”facts from which the court could decide, in the absence of any other explanation, that a person (A) has contravened the provision concerned…” (para 78). S136(2) Equality Act 2010 refers only to the need for there to “be facts“- not to which party must prove those facts. – Although the Explanatory Notes for the Equality Act 2010 refer to the starting point in considering direct discrimination as being with the claimant, the EAT noted that these were the Government’s interpretation of the legislation and “…cannot be treated as reflecting the will of Parliament, which is to be deduced from the language of the statute in question…” (para 79). As a result, the fact that the employer did not bring statistical evidence, which it would have in its possession, relating to the ethnic origin of successful candidates, nor evidence from any of the decision makers in the job applications concerned meant that the Tribunal could draw adverse inferences against the Respondent as part of its fact finding exercise. These inferences, taken together with the evidence that was before the Tribunal (see para 88 of the EAT’s decision), could well have pointed to a conclusion that the requirements of 136(2) were satisfied. The case has been remitted to a differently constituted Tribunal to determine the direct discrimination claims.

Practical implications for employers and employees

As far as the importance of the case for employers is concerned, it illustrates the importance of making sure that they have an explanation and evidence, such as documentary record, to justify any decision which could be the subject of an allegation of discrimination. These matters will be taken into account by a tribunal when deciding whether or not there is a prima facie case of discrimination, and not only at the second stage, when the employer is required to prove that the protected characteristic did not influence their decision making. Employees may feel that it will be easier to prove direct discrimination, now that there is no ‘initial burden of proof’ on a claimant. However, claimants will still have to construct their case carefully, bringing as much evidence as they can to assist the Tribunal in finding the facts that point to unlawful discrimination, whatever the protected characteristic concerned.