SC considers burden of proof in discrimination claims

Tuesday 5th October 2021

The SC has confirmed, in Royal Mail Group Ltd v Efobi, that the introduction of section 136(2) of the Equality Act 2010 did not change the burden of proof requirements in discrimination claims. A claimant must establish a prima facie case before the burden of proof transfers.

While working for RMG as a postman, Mr Efobi, a Black Nigerian and citizen of Ireland, made over 30 internal applications for IT posts over 3 years. Mr Efobi submitted a generic CV with each application failing to tailor them to any of the roles. He was unsuccessful and brought an ET claim which included direct race discrimination.

The ET dismissed Mr Efobi’s claim of direct race discrimination, holding that there was no evidence or proven facts from which it could draw any adverse inferences enabling it to conclude that Mr Efobi had satisfied the burden of proof. RMG called two witnesses familiar with the recruitment process, who explained that the successful candidates all had longer and more relevant experience. They had also submitted more detailed and relevant CVs. None of those involved in processing Mr Efobi’s applications were called and no evidence as to the race and national origins of the other applicants was provided. Mr Efobi appealed.

The EAT allowed the appeal, finding that the ET had wrongly interpreted section 136(2) EqA 2010 as placing the initial burden of proof on Mr Efobi. While this was the case under previous legislation, the EAT considered this had changed with the burden now moving to the employer if there are facts from which an ET could conclude that discrimination occurred. In addition, the EAT held that the ET had erred in law by failing to evaluate all available evidence. The EAT considered RMG’s failure to call any decision-makers or produce any evidence regarding the race of other candidates meant there was material capable of supporting the conclusion that section 136(2) was satisfied.

Overturning the EAT’s decision, the CA held that the burden of proof remains on the claimant to prove a prime facie case of discrimination, as previously, and that pre-EqA 2010 case law remains binding authority. 

The SC agreed. ETs have always been required at this first stage to consider all the evidence. The burden does not shift to the employer to explain the reason for the treatment unless the claimant is able to prove, on the balance of probabilities, facts from which an unlawful act of discrimination can be inferred. The SC held there was no error in law and that the ET should be free to draw, or decline to draw, inferences, taking a common-sense approach.  

All information in this update is intended for general guidance only and is not intended to be comprehensive, or to provide legal advice.