Do Claimants bear the burden of proof in discrimination claims under the Equality Act 2010 s.136 (2)?

Yes, held the Supreme Court in Royal Mail Group Ltd v Efobi [2021] UKSC 33

Mr Efobi, who identifies as Black African, was employed as a postman by the Royal Mail but was seeking an IT role in the organisation. He applied for a variety of such jobs between 2011 and 2015. His applications were unsuccessful and, in 2015, he brought a claim against the Royal Mail at the Employment Tribunal (ET), alleging his lack of success was a consequence of race discrimination.

This claim was dismissed by the ET but Mr Efobi was successful in an appeal to the Employment Appeal Tribunal (EAT) who said the ET had misinterpreted s.136(2) of the Equality Act 2010 (EA), which addresses the burden of proof in discrimination claims. The Court of Appeal reversed the decision of the EAT but Mr Efobi was granted permission to appeal to the Supreme Court (SC) who addressed the question of whether achange in the wording of the burden of proof provisions between previous legislation and the Equality Act 2010 (EqA) has removed the burden of proof placed on claimants in discrimination claims.

To provide some context, previous legislation provided that the burden would begin with the Claimant then shift to the Respondent to prove they didn’t commit acts of discrimination only once ‘the complainant proves facts…’ whereas EqA now states this shift of burden from Claimant to Respondent occurs merely ‘if there are facts’.

The change was regarded as insignificant by most and Tribunals have proceeded on the understanding that the burden of proof still starts with the Claimant in discrimination claims. Mr Efobi challenged this, arguing that the wording of EqA meant there was no burden of proof under the equality act 2010 on the Claimant.

The Supreme Court rejected Mr Efobi’s interpretation, saying that the change in wording was aimed at clarifying the Tribunal’s ability to consider evidence from all sources at the initial stage, rather than just the Claimant’s evidence.

This could have been a seismic change in discrimination law that would have had employers across the country quite worried. But with the SC’s decision it’s a case of as you were.

The judgment can be found here

This blog was written by Jack Dooley, Paralegal at didlaw.