Burden of Proof

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Orthodoxy restored on discrimination burden of proof and is on the Claimant

In Ayodele v Citylink Ltd and anor, the Court of Appeal has held that the burden of showing a prima facie case of discrimination under S.136 of the Equality Act 2010 remains on the claimant. This provision made no substantive change to the law when it came into force in October 2010 and Mrs Justice Elisabeth Laing was wrong to hold otherwise in the EAT in Efobi v Royal Mail Group Ltd.

A, a black man originally from Nigeria, brought a number of claims against his former employer, C Ltd, following the termination of his employment, including claims of race discrimination. The tribunal dismissed his discrimination claims on the basis that A had not established prima facie evidence of less favourable treatment and therefore the burden of proof had not shifted to the respondent. A’s appeal to the EAT was dismissed. Before the Court of Appeal, A raised a new ground of appeal. He submitted that there was a fundamental error in the approach taken by the employment tribunal as to the proper application of the burden of proof under S.136 EqA. He relied on Elisabeth Laing J’s decision in the EAT in Efobi v Royal Mail Group Ltd (Brief 1078), to the effect that the wording of S.136 EqA does not impose a burden of proof on a claimant at all. Instead, 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 conclude that discrimination occurred and, if so, it must so find unless the respondent can discharge the burden on it. A pointed to the fact that in his case the tribunal had directed itself that there was a burden of proof on him at the first stage of the enquiry and therefore it fell into error.

The Court of Appeal dismissed the appeal. It noted that the wording of S.136 EqA is different from the wording of the equivalent predecessor provisions, in that there is no longer any express reference to the claimant being required to prove facts. It rejected A’s suggestion that there was an analogy to be drawn with the assessment of fairness of a dismissal in an unfair dismissal case, where there is no burden on either party. In that context, the tribunal is required to make an assessment in which it is not apt to refer to the burden being on either party. However, in a discrimination case, before a tribunal can start making an assessment, the claimant has got to start the case, otherwise there is nothing for the respondent to address and nothing for the tribunal to assess.

The Court of Appeal could see no reason why a respondent should have to discharge the burden of proof unless and until the claimant has shown a prima facie case of discrimination that needs to be answered. Accordingly, it held that there is nothing unfair about requiring a claimant to bear the burden of proof at the first stage.

The Court also observed there was no reason to suppose that Parliament enacted S.136 to remove the burden of proof from a claimant. Furthermore, the EU Burden of Proof Directive (No.97/80), which S.136 gives effect in domestic law, does not require there to be no burden on a claimant at the first stage, and the legal community has proceeded for the last seven years on the assumption that no change of substance was made by S.136. The change in wording from the predecessor provisions simply made clear that what should be considered at the first stage is all the evidence, and not only the evidence adduced by the claimant: it should be regarded as no more than legislative ‘tidying up’. The Court concluded that previous decisions of the Court of Appeal, such as Igen Ltd and ors v Wong and other cases (Brief 777), as approved by the Supreme Court in Hewage v Grampian Health Board (Brief 958), remain good law and should continue to be followed by the courts and tribunals. It therefore held that the interpretation of S.136 by Elisabeth Laing J in the EAT in Efobi was wrong and should not be followed.

Link to transcript: http://www.bailii.org/ew/cases/EWCA/Civ/2017/1913.html

New burden of proof in Discrimination cases

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