In Royal Mail Group Ltd v Efobi, the Supreme Court confirmed the continuation of a two-stage approach the tribunals must take in deciding whether an employer discriminated against a worker.
Stage 1 – is there a prima facie case?
The Claimant must first show “facts from which the tribunal could decide, in the absence of any other explanation, that” discrimination occurred, under section 136 (2) of the Equality Act 2010.
Types of evidence used in showing this have included:
- Breach of any provision of the EHRC Employment Code or the EHRC Services code.
- An employer’s failure to reply appropriately to written questions about discrimination.
- Discriminatory comments having been made. For example, in Cromwell Garage Ltd v Doran, the employer made several comments indicating that a newly pregnant employee was “dropping him in it”.
Stage 2 – Can the respondent discharge the burden?
The respondent employer must then prove there was a non-discriminatory reason for the action.
Bennett v Mitac Europe Ltd explains what should happen in the tribunal once the claimant has shown a prima facie case, including (my emphasis added):
- The respondent must provide its case on the balance of probabilities, meaning the explanation was more likely than not to be correct.
- Written evidence will likely be important, but absent this the case may turn on the evidence of the decisionmaker(s).
- There may be evidence that another factor was the main reason for the treatment complained of, but this does not mean that discrimination did not occur. A protected characteristic need only be a material factor in the decision-making process for the decision to have been tainted by discrimination.
This blog was written by Ben Lindsay, Solicitor at didlaw.
