The Supreme Court has delivered a unanimous and emphatic judgment on the burden of proof in discrimination claims. The decision has confirmed that the Claimant bears the initial burden of proof to establish a prima facie case, and so restored the orthodoxy that had been disturbed by the ruling of the EAT earlier in these proceedings. It also offers some useful guidance on the drawing of adverse inferences.
The Respondent in this case was represented by David Reade QC and Georgina Leadbetter (of these chambers) and David Flood, instructed by Weightmans LLP.
Mr Efobi was employed as a postman. During his employment, he applied for over 30 IT-related roles with Royal Mail. He was unsuccessful on every occasion and subsequently brought various claims, including direct race discrimination.
Royal Mail did not call the actual decision makers who were responsible for rejecting the Claimant’s job applications. Instead, they called two managers who were familiar with the recruitment process and how appointments were made in general terms.
The direct discrimination claim was dismissed. Two grounds of appeal were before the Supreme Court:
Burden of proof
The various discrimination statutes that preceded the Equality Act employed a two-stage approach to the burden of proof. At the first stage, they placed the burden on the claimant to prove facts from which the tribunal could conclude, in the absence of an adequate explanation, that an unlawful act of discrimination had been committed. If the claimant was able to surpass this hurdle, the burden moved to the employer to explain the reasons for the conduct complained of and show that discrimination played no part. A line of settled case law offered authoritative guidance on the operation of these provisions.
The Equality Act 2010 included similar provisions on the burden of proof but used slightly different wording. One such change was in describing when the burden would shift: the old statutes provided that this was “where the complainant proves facts…”; the Equality Act simply stated “if there are facts…”.
It was widely assumed that this change was of little significance, and that the burden of proof operated as before. Practitioners and tribunals proceeded on this basis for several years. The EAT therefore caused something of a stir when it allowed Mr Efobi’s appeal, holding that section 136 did not put any burden of proof on a claimant at all.
This interpretation has now been emphatically rejected by the Supreme Court. The statutory wording was changed to remove ambiguity about whether the tribunal could consider evidence from all sources at the first stage, or whether it was instead limited to considering the claimant’s evidence. Nothing in the background to the Equality Act suggested that a substantive change to the law had been intended. The initial burden of proof remains with the claimant.
The second ground was dealt with in brief terms. The Supreme Court declined to refer to previous authorities on the drawing of inferences in any depth. It held that tribunals should be free to draw (or refuse to draw) inferences from the facts of the case using their common sense rather than referring to any legal rules. Whether any positive significance should be attached to the fact that a person had not given evidence depends entirely on context and particular circumstances.
In the present case, there was nothing to suggest that the tribunal had thought that it was precluded as a matter of law from drawing adverse inferences about the witnesses called by Royal Mail. It had simply declined to do so, and that decision was not perverse on the facts of the case. The appeal therefore failed.
The judgment has taken a potentially drastic shift in discrimination law and nipped it in the bud. This is not a surprising result given the rationale for the shifting burden of proof: striking a fair balance between the competing interests of litigants. Claimants face particular difficulties in making out discrimination claims, as they cannot give direct evidence about an employer’s subjective motivation. On the other hand, as noted by the Supreme Court, it would be unduly onerous to require an employer to disprove a mere assertion of discrimination.
The guidance on adverse inferences includes two useful observations, particularly for respondents. First, the judgment made clear that the first step is to identify the precise inferences that should be drawn. This will be a useful rejoinder if faced with a generalised assertion that adverse inferences should be drawn from a particular matter. Second, although every case will turn on its own facts, the following statement may find its way into written submissions before too long: “there can be no reasonable expectation that a respondent will call someone as a witness in case that person is able to recall information that could potentially advance the claimant’s case…”
Article written by James Green