Published: 29 September 2017
In a decision described by the barristers who acted for the successful Claimant, Mr Efobi, as “a radical reconsideration of the burden of proof”, last month the Employment Appeal Tribunal handed down judgment on how to correctly interpret the burden of proof provision concerning cases of direct discrimination under the Equality Act 2010 (“EqA”).
What was the case about?
Mr Efobi is of ‘black African/Nigerian’ ethnicity and a postman who applied for over 30 alternative roles advertised by his employer, Royal Mail Group (“Royal Mail”). The roles were mostly in IT, an area in which he held graduate and postgraduate qualifications. Mr Efobi was sometimes shortlisted for interview, but was ultimately unsuccessful in each attempt. Royal Mail said this was because of a weak CV, but he suspected that it was because he had stated his country and town of birth in his applications, and that he had therefore been discriminated against on racial grounds. He brought a claim to the Employment Tribunal (“ET”) alleging direct race discrimination, which was dismissed. He appealed the ET’s decision, claiming that the ET had applied an incorrect test when considering the burden of proof.
The EAT found for Mr Efobi that section 136 of the EqA was the standard which should have been applied, as follows:-
S136(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
S136(3) But subsection (2) does not apply if A shows that A did not contravene the provision.
This wording does not
impose an initial burden of proof on the Claimant, and instead requires the ET to consider all the evidence
of the case and see if a prima facie case of discrimination exists on this basis. It is then for the Respondent to disprove this, else the ET must find that the discrimination has taken place.
What implications will this have for claimants?
This decision may be seen to remove a hurdle for employees
to overcome when showing that they have been victim to direct discrimination. However, as the ET will need to consider all the evidence available, it is vital
that an employee puts forward a strong case if they can hope to be successful. It is important, as in any case, to gather evidence carefully, keep records of instances of perceived discrimination and make contemporaneous notes of any incidents or conversations which may be relevant to future proceedings.
I am an employer – what does this case mean for me?
Now that claimants do not have to satisfy the initial burden of proof, employers will need to be careful to put forward a robust case with a strong rebuttal to any possible findings of discrimination
by the ET. It would be wise for an employer to keep detailed records of their recruitment decisions and ensure that a reasonable explanation can be given and evidenced for any decision-making where an allegation of discrimination could potentially be made. It is also particularly important that the decision-making processes of individual decision-makers
are recorded and scrutinised.