Court of Appeal confirms Claimants bear the initial burden of proof for discrimination claims

The Court of Appeal has confirmed that the initial burden of proof for discrimination claims rests on the Claimant to establish a prima facie case.

Facts

In Royal Mail Group Ltd v Efobi, Mr Efobi (who was Nigerian) was a postman for the Royal Mail who hoped to secure an internal IT role. He applied for vacancies using an online application form. While external candidates were required to complete questions detailing their town and country of birth, this was not required for internal candidates (although Mr Efobi provided this anyway as part of his applications). 

There was a comprehensive recruitment process for vacancies within the Royal Mail. This involved sifting initial applications to create a long-list of candidates before short-listing candidates after speaking to the hiring manager. The final stage was an interview along with psychometric and competency-based tests. 

Having being unsuccessful in 33 applications, Mr Efobi alleged his lack of success was because of his race and brought a direct race discrimination claim (alongside claims for harassment and victimisation). His claim failed in the first instance, with the employment tribunal holding that it was for the Claimant to prove facts from which it could conclude that there had been discrimination, which he had failed to do. 

EAT Decision

The Claimant appealed to the Employment Appeal Tribunal (EAT). The EAT, in a departure from previous case law authorities, held that the burden of proof provisions in section 136(2) Equality Act 2010 do not place an initial burden on Claimants to establish a prima facie case. Instead, the EAT held that a tribunal must consider all the evidence at the end of the hearing, from all sources (not just the Claimant) to decide whether or not there are facts from which it could conclude that discrimination has occurred. If such facts existed and no reasonable explanation is offered by the employer, the EAT held that a tribunal must find that discrimination had occurred. 

Court of Appeal

The employer appealed to the Court of Appeal. The Court of Appeal overturned the EAT decision and confirmed that the initial burden of proof rests on the Claimant to establish a prima facie case. The burden of proof therefore remains two staged:

• Stage 1: can the Claimant show a prima facie case? If yes, the burden shifts to the Respondent employer for stage 2.
• Stage 2: is the Respondent employer's explanation sufficient to show that it did not discriminate?

Implications

This decision reinstates the orthodox position from previous lines of authority for the burden of proof in discrimination claims. Following the EAT decision in Efobi, the Court of Appeal had heard a separate appeal in Ayodele v Citylink Ltd and another, which held that Claimants do bear the initial burden of proof to establish a prima facie case. The Court of Appeal’s decision in Efobi therefore confirms that position.