Burden of proof

It is generally accepted that an employee can only proceed with a discrimination claim if they can prove facts from which a tribunal could conclude that discrimination has taken place. If the employee does this, the burden then passes to the employer to show that it has not committed an act of discrimination. This is often referred to as the shifting burden of proof.

The question for the UK Supreme Court in Royal Mail Group Ltd v Efobi was whether a change in wording in the Equality Act changed that position. The Court found that it did not.

What happened

Mr Efobi was employed as a postman but wanted to move into an IT role in which he could use his computing qualifications. He made 30 separate applications for IT and management positions over a three year period, none of which was successful. He claimed race discrimination.

Although an employment tribunal dismissed his claims, the EAT allowed an appeal, finding that the Equality Act no longer imposed an initial burden of proof on the employee. The Supreme Court considered whether the Equality Act had changed the law in this way.

No change to the law

Earlier legislation said that “the complainant” must prove facts from which a tribunal could conclude that discrimination has taken place. In the Equality Act, that wording changed to “if there are facts” from which the tribunal could decide that discrimination has taken place.

According to the Supreme Court, the change in wording does not remove the initial burden of proof from the employee. It reflects that the tribunal can take evidence from any source into account at the initial stage and is not limited only to evidence adduced by the employee. That was the established position before the Equality Act came into force and the Equality Act wording reflects that. It does not alter the fact that the employee still has to satisfy the initial burden of proof.

Adverse inference

The second question for the Supreme Court was whether the tribunal should have drawn an adverse inference from the fact that Royal Mail did not call any of the decision makers in the recruitment exercises to give evidence about why they rejected Mr Efobi’s applications. The Court observed that whether it is appropriate to draw an inference will depend on factors such as:

• Whether the witness was available;
• What relevant evidence the witness could give; and
• The significance of the evidence in the context of the case as a whole.

However, there was no reasonable expectation that an employer would call a witness simply in case they were able to recall evidence that could potentially advance the employee’s case. There was no basis for the tribunal to infer that by failing to call the witnesses, the employer was seeking to withhold potentially relevant information. On the facts of the case, the tribunal was entitled not to draw an adverse inference from the employer's decision not to call the witnesses.

Next steps

Even though the employee's claim failed, the decision highlights the importance of calling all relevant witnesses to give evidence. The burden of proof did not shift to the employer in this case, so it did not have to provide an explanation for why the employee's numerous job applications failed. However, had the burden of proof shifted, the Supreme Court observed that the employer may have found it difficult to prove that there was no discrimination, in the absence of direct evidence about why those applications were rejected.