In Efobi v Royal Mail Group Ltd, the EAT has held that S.136 of the Equality Act 2010 – which deals with the burden of proof in discrimination cases – does not impose any initial burden on claimants to establish a ‘prima facie’ case of discrimination. Rather, it requires the tribunal to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not there are facts from which it can infer discrimination. If there are such facts, and no explanation from A, the tribunal must uphold the complaint. It may therefore be misleading to refer to a ‘shifting’ of the burden of proof, as this implies, contrary to the language of S.136, that Parliament has required a claimant to prove something.
E worked as a postman for RMG Ltd. On more than 30 occasions, E applied unsuccessfully for an IT job with the company. He subsequently complained to an employment tribunal that his applications were rejected because he was a black African, born in Nigeria. The tribunal dismissed his race discrimination claims, holding that he had not proved facts from which it could conclude that there was discrimination. For instance, there was no evidence to show that the successful applicants were appropriate comparators (no evidence having been adduced as to their race and national origins). In contrast, RMG Ltd had adduced ample evidence to establish that it had good reasons, untainted by discrimination, to reject E’s applications – notably that while E was highly technically qualified, his CV did not set out the required skills for the various jobs.
Upon appeal to the EAT, E argued that the tribunal had erred in law in its application of the burden of proof, having failed to analyse properly what inferences it could (or should) have drawn from the evidence. The EAT (Mrs Justice Laing sitting alone) observed that S.136(2) of the EqA provides ‘if there are facts from which the Court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the Court must hold that the contravention occurred’. However, S.136(2) ‘does not apply if A shows that A did not contravene the provision’ – S.136(3). In the EAT’s view, S.136(2) does not put any initial burden on a claimant (although if the claim is ‘manifestly frivolous’, a respondent can apply to have it struck out). Rather, it requires the tribunal to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not there are facts from which it can infer discrimination. If there are such facts, and no explanation from A, the tribunal must find the contravention proved. If a respondent chooses, without explanation, not to adduce evidence about matters that are within its knowledge (such as, in this case, the race and national origins of the successful applicants), it runs the risk that a tribunal will draw adverse inferences in deciding whether or not S.136(2) has been satisfied.
The EAT acknowledged that this is not the way in which S.136 is interpreted in the Explanatory Notes to the EqA (which state that ‘the burden of proving his or her case starts with the claimant’). However, while such notes may be an admissible aid to the construction of a statute in order to establish contextual factors, they cannot be treated as reflecting the will of Parliament, which is to be deduced from the language of the statute itself. The EAT further acknowledged that this is not the way in which the burden of proof has been understood thus far in discrimination cases, starting with Igen Ltd (formerly Leeds Careers Guidance) and ors v Wong and other cases (Brief 777). However, the statutory provision there being considered was S.63A of the Sex Discrimination Act 1975 (a predecessor to S.136 EqA), which – along with its ‘sibling provisions’, in for example the Race Relations Act 1976 – specifically placed the onus on the claimant to prove the initial facts from which discrimination could be inferred. There had not been many cases in which the effect of S.136 (as opposed to its predecessors) had been directly considered.
It was clear to the EAT that the tribunal did not understand the effect of S.136, since it had stated on several occasions that E had the initial burden of proving a prima facie case of discrimination. In light of this misdirection, the EAT could not be confident that the tribunal had not required E ‘to prove things that he was neither required, nor able, to prove’, such as the race and national origins of the successful candidates. In addition, the EAT could not be confident that the tribunal had imposed a sufficiently rigorous standard of proof on RMG Ltd. Had the tribunal appreciated that E did not have to get ‘to first base’ (as it put it), but that it had to consider all the evidence in the round, it might have concluded that S.136(2) was satisfied, and then have subjected RMG Ltd’s explanation to more rigorous scrutiny than it did.
The EAT therefore remitted the case to a differently constituted employment tribunal to decide whether or not E’s race discrimination claims were made out. In doing so, the EAT commented that even if S.136 were to be interpreted in line with its predecessors, it would still have allowed the appeal – it was not confident that the tribunal understood that there might have been facts from which a court could have concluded that (in the absence of an explanation) RMG Ltd had discriminated against E.
Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0203_16_1008.html