The Employment Appeal Tribunal decision in Efobi v Royal Mail Group Limited UKEAT/0203/16/DA marks a significant new departure on the operation of the ‘burden of proof’ in discrimination claims. It will interest workers, employers, recruiters and employment lawyers.
The Claimant worked as a postperson. He was an Irish citizen born in Nigeria and his race / ethnicity was defined as black African and/or Nigerian.
He wanted to make use of his skills in IT and applied for a role in that department on 33 occasions over a period of time. Every application was rejected.
Royal Mail had encouraged him with tips on how to improve his CV, offered him an interview outside of the normal process and gave him feedback afterwards to improve his chances of securing a role.
Nevertheless, the Claimant brought a grievance as a result of the rejections. Royal Mail relied on independent recruiters to review its internal decisions. The independent recruiters upheld the rejections.
The Employment Tribunal claim
The Claimant brought a Tribunal claim complaining of direct and indirect race discrimination. That triggered further incidents at work and the Claimant then included additional claims for victimisation and racial harassment.
At the Tribunal he was successful in his more recent claims for harassment and victimisation, but all of his job application claims failed.
In summary, the Employment Tribunal (‘ET’) concluded that the reason why other job candidates were successful was that they had better CVs than the Claimant. It was not because of the Claimants race.
The EAT Appeal
On appeal to the Employment Appeals Tribunal (‘EAT’), a number of errors were identified in the ET’s approach.
The ET was wrong to treat the employer’s staff as a collective entity when considering if it discriminated against the Claimant (§ 50). Each decision maker’s actions ought to have been analysed separately in order to discover the subjective reasons for their conduct.
The ET also failed to review each job application individually (§ 74). Again, this was the wrong approach where multiple allegations had been made relating to different job applications.
More fundamentally, the ET misapplied section 136 of the Equality Act 2010 when they concluded that the Claimant had not proved the facts of discrimination (either directly or by inference).
At the trial, Royal Mail had decided not to present evidence on the race or ethnicity of most of the successful job applicants nor to callas witnesses any of the decision makers in the recruitment process. There was no direct evidence of what was going through the minds of those who rejected the Claimant’s applications (§ 85).
That was a high risk tactic for any employer to adopt in light of the effect of section 136 of the Equality Act 2010, which reads:
136 Burden of proof
(1) This section applies to any proceedings relating to a contravention of this Act.
(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.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision.
How to apply the ‘burden of proof’ in discrimination claims
The EAT held at § 86:
At the first stage of the analysis required by section 136, there is no burden on a Claimant to prove anything (although if his case is manifestly frivolous, a Respondent can apply to have it struck out). What the ET has to do is to look at the “facts” as a whole. If a Respondent chooses, without explanation, not to adduce evidence about matters which are within its own knowledge, it runs the risk that an ET will draw inferences, in deciding whether or not section 136(2) has been satisfied, which are adverse to it on the relevant areas of the case. Those inferences will then be part of the “facts” for the purposes of section 136(2).
Far from placing a burden on the Claimant to prove the primary facts of the alleged discrimination, section 136 EA 2010 should be applied by Tribunals at the end of hearing all of the evidence from both sides when it is making its findings of fact (§ 78).
Although this view differs from the Explanatory Notes of the 2010 Act, those notes do not reflect the will of Parliament which is divined from the actual words of the statute (see Westminster City Council v NASS  UKHL 38 at §§ 5 and 6).
Here, the Claimant was unable to prove his case in relation to the nationality of the successful job applicants because Royal Mail had not provided all the information. While the Claimant hadn’t asked for this information, he was acting as a litigant-in-person (without a legal representative) at the time of the ET hearing and lacked a full understanding of how to compel disclosure of the information.
The Tribunal had wrongly required the Claimant to prove his case of discrimination on a number of points. There were matters before the ET that could have given rise to adverse inferences of discrimination in the absence of an explanation from the employer that discrimination was not the reason for the conduct.
As such, the ET’s analysis was insufficiently rigorous and had misapplied section 136 EA 2010. The case was remitted to the Employment tribunal for a retrial on the issues related to the rejection of the Claimant’s job applications.
This is a radical departure from how Judges have previously approached the ‘burden of proof’ in discrimination claims.
It used to be thought that the Claimant must first convince the Tribunal of the ‘primary facts’ of discrimination before the burden of proof then ‘shifts’ to the employer to show that it did not in fact discriminate.
Apparently that is not the effect of the statute and there is no initial burden on the Claimant to prove anything. They simply need to make the allegations of discrimination which will be evaluated in light of the evidence as a whole and may be strengthened by the employer’s silence or absence when it comes to explaining its conduct.
Undoubtedly, this makes it easier for Claimants to establish their claims. It will also be likely to make it even harder for employers to obtain orders to strike out discrimination claims before they reach a full trial.
Because of this, I think we’re likely to see more ‘burden of proof’ litigation further in the near future.
Other Judges may differ on their approach to statutory interpretation and, in particular, what assistance may be derived from the Explanatory Notes and even from the header to section 136 EA 2010 (which reads ‘Burden of proof’ and might suggest a heavier expectation on Claimants than that suggested in Efobi).
For now, a thought process that has been followed and applied by lawyers and Judges over many years so as to become employment law orthodoxy, has just been turned on its head.
Key points for professionals
- Contrary to received wisdom, Claimants are under no initial burden to prove their complaints of discrimination. All they must do at the outset is to provide the allegations which the employer must then disprove;
- An employer faced with multiple allegations of discrimination runs the risk of adverse inferences being made against it if it does not provide evidence to show that each act or omission was not related to a protected characteristic;
- That evidence should include the testimony of the individual decision makers, rather than persons who were not directly involved in the acts / omissions;
- Testimony in recruitment cases should cover the entire procedure (ie. who operates recruitment systems and how, advertisement, long and short-listing, how personal details are treated, selection before and after interviews, any tests and the final decision, etc);
- Where equal opportunities data is collected on applicants for the posts in question, that information should ordinarily be presented for scrutiny;
- If relevant individuals have left the organisation, evidence should be provided of this and the outcome of any attempts to contact them should also be recorded.