Burden Of Proof In Discrimination Cases

• Published date: 09 September 2021
• Subject Matter: Employment and HR, Litigation, Mediation & Arbitration, Discrimination, Disability & Sexual Harassment, Employment Litigation/ Tribunals, Trials & Appeals & Compensation
• Law Firm: Trowers & Hamlins
• Author: Ms Emma Burrows and Nicola Ihnatowicz

The Supreme Court has agreed with the Court of Appeal and held that the Employment Appeal Tribunal (EAT) was incorrect to conclude that there is no initial burden of proof on a claimant in a discrimination claim in Royal Mail Group Ltd v Efobi.

Mr Efobi is a black African born in Nigeria. He worked as a postman for Royal Mail Group Ltd but attempted, unsuccessfully, on 33 different occasions to secure an IT-related role. He believed that he had been unsuccessful because of his race and brought a claim for direct race discrimination.

Around six recruiters and two hiring managers were involved in Mr Efobi's unsuccessful applications, but Royal Mail did not call any of them to give evidence at the tribunal hearing. At first instance the tribunal accepted the evidence of the witnesses Royal Mail did call that the successful candidates all had significantly longer and more relevant experience than Mr Efobi and produced more detailed and relevant CVs. It held that it was for Mr Efobi to prove facts from which it could conclude that there had been discrimination, and dismissed his claim. The EAT remitted the case back to a differently constituted tribunal for rehearing, holding that...