The Claimant does not bear an initial burden of proof in discrimination cases.
The "burden of proof" means where the responsibility lies for proving certain things in litigation. The settled wisdom for many years in discrimination claims was that there was a burden on the Claimant to prove a prima facie case (or show the primary facts) of discrimination before the burden "‘shifted" to the Respondent to prove that it did not commit the act of discrimination. The case of Efobi has turned this on its head.
Mr Efobi was a black African man born in Nigeria who worked for the Royal Mail Group (RMG) as a postman. Over the course of his employment had applied for over 30 IT jobs without success. In the employment tribunal (ET) his claim that RMG had directly discriminated against him because of his race failed. The ET held that Mr Efobi had not proved facts from which it could conclude that there was discrimination. This was despite the fact that was highly qualified, had set out his country of birth in his application form and that RMG had produced no evidence of the race and national origins of the successful candidates and had not called the decision-makers in respect of his applications to give evidence.
Section 136 of the Equality Act 2010 (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). Similar but not identical provisions had appeared in the anti-discrimination legislation which preceded the EqA, and courts and tribunals had used a 2 stage test when considering discrimination under this legislation:
1. It was for a claimant to establish facts that would allow the tribunal to decide that an act of unlawful discrimination had taken place, in the absence of an explanation by the respondent.
2. Once those facts were established it was for the respondent to prove that discrimination did not take place.
It was assumed that this test applied to the burden of proof provisions of the EqA. Indeed, the Explanatory Notes to the EqA at paragraph 443 say that in discrimination claims "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".
However, the EAT in Efobi held that this approach was wrong. Section 136 does not impose a burden of proof of any kind on the Claimant, and this is apparent from the wording of the section itself. Concepts such as "shifting" or "'reversing" the burden of proof are misleading as the provisions do not oblige the Claimant to prove something. Explanatory Notes to legislation can help in understanding a statute but they cannot be treated as reflecting the will of Parliament, which is to be deduced from the statute itself.
The burden of proof provisions apply equally to disability discrimination claims as they do to claims of race (or any other protected characteristic) claims and so this is a case of potential importance to people with mental health problems who are the victims of discrimination. Efobi means that claimants no longer have to convince the tribunal of "primary facts" of discrimination before the burden shifts to the employer to show that it did not discriminate. Rather, the ET should consider all evidence from all sources (including the employer’s explanations or lack of them) at the end of the hearing to decide whether there are facts from which it can infer discrimination. This will make it easier for people claiming discrimination to prove their cases, especially if the Respondent does not provide an explanation of the discriminatory behaviour or call witnesses to deal with specific allegations.
The judgment can be found here.