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Maria Krishnan



28th February 2018



Business as usual: the Court of Appeal restores burden of proof status quo for discrimination claims

Although not expressly stated in the statutory wording, it is widely accepted that the Equality Act 2010 (EQA) requires a claimant to prove facts which, on the face of it, show that discrimination could have taken place. This has often made it difficult for discrimination claims to succeed. It requires a claimant to prove more than a hunch or suspicion and in the absence of an evidential “smoking gun”, such as an email which contains discriminatory remarks, a claimant must carefully and methodically build their claim. Or so we all thought…

Efobi v Royal Mail Group

In August 2017, the Employment Appeal Tribunal (EAT) handed down its judgment in the case of Efobi v Royal Mail Group. Mr Efobi had applied 33 times for various roles with Royal Mail. Each application had been rejected and Mr Efobi claimed these refusals were discriminatory on the basis of his race. At first instance, Mr Efobi’s claims were dismissed by the Employment Tribunal (ET). It found that Mr Efobi had not proven facts which, on the face of matters, showed that discrimination could have taken place. As he had not satisfied the evidential burden, his claims failed.

Mr Efobi appealed against this finding. He claimed that the ET had misunderstood the parts of the EQA that govern the burden of proof in discrimination claims. He maintained that the precise wording of the EQA did not require him to prove anything per se. Rather, the ET was bound to consider all evidence before it and then assess whether the facts indicated that discrimination could have taken place. The EAT agreed with Mr Efobi, noting that the statutory wording of the EQA merely requires that the ET find facts from which discrimination could be inferred. It does not oblige the claimant to prove such facts. In requiring Mr Efobi to make out his case, the ET had placed an unfair burden on Mr Efobi.

The EAT’s judgment in Efobi was a significant departure from the widely accepted position. It seemed, for a while at least, that claimants would have less to prove and consequently that it could become easier for claimants to win discrimination claims.

Ayodele v Citylink Limited

The Court of Appeal (CA) rectified the situation in November 2017 when it gave judgment in the case of Ayodele v Citylink Limited. Mr Ayodele’s claims had also been dismissed by the ET as he had not proven, to the ET’s satisfaction, facts from which discrimination could be inferred. He appealed to the EAT and then to the CA claiming that the ET had applied the burden of proof incorrectly and that his claims should not have been dismissed. He relied on the EAT’s judgment in Efobi in support of his appeal in the CA.

However, contrary to the decision in Efobi, the CA held that it was proper and in keeping with the wording of the EQA and established case law that a claimant be required to prove his or her claim. The CA noted that this approach maintains a fair balance between the rights of the parties and appears to be as Parliament had intended.

Conclusion

Understanding where the burden of proof lies is important for both claimants and respondents when seeking to successfully bring or defend a claim. Although the CA’s decision in Ayodele ended a brief period when it may have been easier for claimants to succeed, this is not the end of the evidential story for a discrimination claim. If a claimant can show a ‘prima facie’ case, the burden of proof automatically shifts to the respondent, which must then prove that discrimination did not take place. Practically, this may entail demonstrating that robust policies and procedures are in place (for example an Equality or Equal Opportunities Policy). Any policy breaches are dealt with seriously and appropriate action is taken and documented. Where selection processes are necessary (for example in recruitment or redundancy scenarios), objective, measurable and non-discriminatory criteria should be applied. Consideration should also be given to providing regular and compulsory equality and diversity training. Employers would be wise to keep meticulous records of any decisions taken as these can be incredibly useful when building an effective defence.

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