A radical reconsideration of the burden of proof: Efobi v Royal Mail Group Ltd (EAT)

In an important decision on the correct interpretation of the burden of proof provisions in the Equality Act 2010, Efobi v Royal Mail, Tom Coghlin and Navid Pourghazi successfully appealed against an employment tribunal’s decision to dismiss a claimant’s race discrimination complaints.

S.136 of the Equality Act 2010 provides for a two-stage burden of proof. In the case of Efobi v Royal Mail Group plc, Laing J has cast fresh light on how that test operates, the effect of which is to re-write the well-known Igen v Wong guidelines.

The claimant was a postman.  He applied unsuccessfully for over twenty different roles within Royal Mail, mainly in IT, and claimed that his lack of success was due to direct race discrimination.  Rejecting his claim, the employment tribunal held, in line with the well-known Igen v Wong guidance, that at Stage 1 it is for the claimant to prove facts from which the tribunal could conclude, absent an explanation, that there had been discrimination. 

Laing J held that this was an error of law and that it did not reflect the wording of s.136, which she considered was materially different from the wording of the predecessor legislation.

In Laing J’s view, s136(2) puts no burden on a claimant to prove anything at Stage 1. The focus rather is on the entirety of the evidence, from all sources, to decide whether there are “facts from which the court could decide, in the absence of any other explanation, that a person (A) has contravened the provision concerned…” (para 78).  As Laing J put it, “What the ET has to do is to look at the ‘facts’ as a whole.”

Laing J observed that it may, therefore, be misleading to refer to a shifting burden of proof at all (para 78).

The judge acknowledged that her interpretation was different from the one set out in the Explanatory Notes to the Equality Act 2010, which say that “the burden of proving his or her case starts with the claimant.  Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act”, but she observed that Explanatory Notes reveal only a Government’s view about the scope of statutory language; only the language of the statute may be used to deduce the will of Parliament.

Further the judge acknowledged that her interpretation of s.136 differed from the approach taken to the burden of proof in Igen v Wong (which starts with the claimant being required to prove “such facts”).  However she noted that Igen concerned the predecessor legislation (s.63A of the Sex Discrimination Act 1975) which was differently worded and which did place an initial burden of proof on claimants.  This wording had been changed in s.136(2) of the Equality Act and no appellate court had considered this point yet in detail.

Laing J also noted that her interpretation went further than is required by Article 8.1 of Directive 2000/43, which provides that respondents should be required to prove that there has been no breach of the principle of equal treatment where the claimant has “establish[ed] facts from which it may be presumed that there has been direct or indirect discrimination.”  However she noted that Article 8.2 permits Member States to introduce rules of evidence which are more favourable to plaintiffs.

Applying these principles, Laing J held that the tribunal had misdirected itself and fallen into error when it found that the claimant “had not proved facts” from which the tribunal could conclude that there had been discrimination. 

Laing J further commented that an effect of her interpretation is that, whereas submissions of no case to answer used to be discouraged, they are now effectively prohibited by s.136 (paragraph 78).

The case is also a salutary reminder to respondents to call relevant evidence when defending discrimination claims. 

During the substantive hearing before the ET, the Respondent had not volunteered any evidence about the race or national origins of the successful job applicants. Nor had the Respondent called as a witness any of those who had rejected the Claimant’s applications, which meant that the ET had to rely on “second-hand” evidence concerning their reasons for rejecting the Claimant. The EAT observed that:

“If a respondent chooses, without explanation, not to adduce evidence about matters which are within its own knowledge, it runs the risk that an ET will draw inferences, in deciding whether or not section 136(2) has been satisfied, which are adverse to it on the relevant areas of the case. Those inferences will then be part of the ‘facts’ for the purposes of section 136(2).” [para 86]

In light of the ET’s misdirections on the burden of proof, the EAT had doubts that the ET had imposed a sufficiently rigorous standard of proof on the Respondent to show that it had not discriminated against the Claimant. The EAT also said that there was a real question as to whether or not the Respondent could show that it did not discriminate against the Claimant in circumstances where it had not called a single decision-maker to give evidence, though it stated that this was a decision for the freshly-constituted tribunal to make.

As a fall-back position, the EAT found that, even if the correct interpretation of s.136(2) is that it does place the burden of proof on claimants at the first stage, tribunals are nonetheless obliged to consider all the evidence (and not just the evidence adduced by claimants) at stage 1 to determine whether or not the claimant has proved facts etc., and the ET in the instant case did not appear to understand that there might have been facts before it from which a court could have concluded (in the absence of an explanation) that the Respondent had discriminated against the Claimant. Their failure to understand the significance of this meant that they did not scrutinise the Respondent’s explanation rigorously enough.

Discussion

The EAT’s decision in Efobi v Royal Mail provides important authority on how correctly to interpret the burden of proof provision at s.136(2), which lies at the heart of almost all discrimination cases. The decision is based firmly on the statutory wording of the Equality Act, and the change of that wording from the Equality Act’s predecessor legislation. The decision will not only affect the way tribunals approach the burden of proof provisions; it also reaffirms the importance of ensuring that tribunals apply their mind to question of who is the alleged discriminator in direct discrimination complaints, and provides a warning to respondents of the risks involved in not calling those alleged discriminators (without good explanation) to give evidence.

By Daniel Dyal