Where does the burden of proof lie in discrimination claims?

In a recent decision, following a challenge to the burden of proof rules in discrimination claims, the Supreme Court confirmed that in a claim of discrimination, a claimant must set out facts from which a tribunal could draw an inference of discrimination for the burden of proof to move to the respondent to show there was no discrimination. This challenge was due to a change to the wording of legislation in the Equality Act 2010 compared to the Race Relations Act 1976.

The introduction of the Equality Act 2010 meant the wording concerning the burden of proof changed slightly from the prior legislation’s use of “where the complainant proves facts” to the updated wording of “if there are facts”.

Employment Tribunal

In Royal Mail Group v Efobi, the Claimant Mr. Efobi (a dual citizen of Nigeria citizen the Republic of Ireland who identified as Black African and Nigerian) brought claims against his employer, Royal Mail Group, after making over 30 unsuccessful applications for other roles within the company, including roles in management and IT. After failing to secure a single role, Efobi brought claims for direct and indirect discrimination, victimisation and harassment on the grounds of race.

The Employment Tribunal rejected all of Mr Efobi’s claims holding that he had failed to discharge his burden of proving facts from which an inference of discrimination could be drawn by the Tribunal.

Employment Appeal tribunal

Mr Efobi appealed his case to the Employment Appeal Tribunal (EAT) which granted the appeal. The EAT found that the Employment Tribunal had erroneously applied the burden of proof and that in considering if the burden of proof was discharged, the tribunal must look at the facts of the case as a whole and consider all relevant evidence – as opposed to solely examining the claimant’s evidence. The EAT relied on a change in the wording about the burden of proof in the Equality Act 2010 compared to that in the earlier Race Relations Act 1976.  

The EAT concluded that the Equality Act wording meant that the Tribunal should look at all the evidence, not just the claimant’s upheld the appeal.

Supreme Court decision

The EAT’s interpretation was rejected by the Supreme Court in July 2021. It confirmed that there is an initial burden of proof on the claimant to show facts from which a tribunal could conclude discrimination had occurred. It is only once that has been satisfied that the burden passes to the respondent to prove discrimination did not occur.

The Supreme Court wholly rejected the EAT’s notion that the change in wording imposed by the Equality Act 2010 relieved the claimant from the burden of proof.

The Supreme Court’s decision provides welcome clarity on the burden of proof in discrimination cases. Although the introduction of the Equality Act 2010 meant a minute change of wording, the burden of proof has not changed.

This article was co-written by Jenna Alexander, Trainee Solicitor.