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Discrimination claims: the burden of proof

The Supreme Court has confirmed that claimants bear the initial burden of proof to establish a prima facie case in discrimination claims. Hilary Larter, Zoë Wigan and Ceri Fuller examine the ruling.

In Royal Mail Group Ltd v Efobi [2021] UKSC 33 (23 July 2021) the Supreme Court has confirmed that claimants bear the initial burden of proof in discrimination claims. The Equality Act 2010 did not change the requirement on claimants to prove, on the balance of probabilities, facts from which in the absence of any other explanation, the employment tribunal could infer an unlawful discrimination has taken place.

The facts

Mr Efobi is a black Nigerian and citizen of Ireland. He holds graduate and post-graduate qualifications in information systems. While employed as a postman he unsuccessfully applied for over 30 IT-related roles. He subsequently brought various claims including direct race discrimination.

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At the employment tribunal hearing, the respondent called two witnesses who were familiar with its recruitment processes, but not the managers who made the decisions to reject Mr Efobi. The tribunal accepted that the successful candidates all had significantly longer and more relevant experience than Mr Efobi, and had produced more detailed and relevant CVs. Furthermore, Mr Efobi had not proved facts from which the tribunal could conclude that the recruiters or hiring managers knew of his race or national origins, or that this influenced any of their recruitment decisions. The tribunal therefore dismissed the direct discrimination claim, and Mr Efobi appealed to the EAT.

The EAT allowed Mr Efobi’s appeal. It considered that the employment tribunal had misdirected itself regarding the burden of proof set out in the Equality Act 2010 (s.136(2)). This uses slightly different wording from the predecessor statutes in describing when the burden of proof shifts.  The predecessor statutes (including the Race Relations Act 1976) stated the burden would shift “where the complainant proves facts….” Whereas the Equality Act states “if there are facts” from which the employment tribunal could conclude that discrimination has occurred. In the EAT’s view, the proper approach was for the employment tribunal to consider all the evidence, not just Mr Efobi’s. It went on to hold that because the respondent did not call any of the decision-makers or to adduce evidence of the race or national origins of the successful candidates, there was material capable of supporting a conclusion that the burden of proof was satisfied.

The Court of Appeal overturned the EAT’s decision. It held that the burden of proof remains on the claimant at stage one to establish a prima facie case of discrimination, that the position under the Equality Act is substantively no different from that under the predecessor legislation. The Court went on to hold that the tribunal manifestly had enough evidence to warrant the conclusion that Mr Efobi had failed to establish a prima facie case.  

Mr Efobi appealed to the Supreme Court who emphatically agreed with the Court of Appeal. The Equality Act 2010 did not change the requirement on the claimant who has the initial burden of proving, on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination. The Supreme Court went on to hold that the employment tribunal did not err in declining to draw an adverse inference because the respondent had not called the relevant decision-makers as witnesses. Tribunals should be free to draw, or decline to draw, inferences in the case before them using their common sense.

What does this mean for employers?

The Supreme Court’s decision is a welcome one.  Had it approved the EAT’s interpretation of the tweak in language made by the Equality Act 2010, this would have marked a considerable change in discrimination law. In emphatically restoring the orthodoxy employers no longer need to worry about having to disprove mere assertions of discrimination.

Hilary Larter and Zoë Wigan are consultants and Ceri Fuller is a practice development manager/legal director at DAC Beachcroft.

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