Discrimination and the burden of proof

12 February 2019

One of the most difficult aspects of a direct discrimination claim is the burden of proof and the circumstances in which the employer will be asked to prove that no discrimination has occurred.

In Efobi v Royal Mail Group Ltd the Court of Appeal emphasised that it was not enough for the employee merely to complain about his or her treatment and then require the employer to explain the reasons for it. Before any burden is placed on the employer to explain its behaviour, the employee must prove facts from which the Tribunal could infer that the treatment complained of amounted to discrimination. The employee in that case had applied for 20-30 internal posts but had been rejected for each. He brought a Tribunal claim alleging race discrimination but did not seek disclosure from the employer of the racial origins of the successful candidates or specific evidence as to why each application was rejected. He assumed that the employer would call such evidence of its own accord, but it decided not to. Instead the employer persuaded the Tribunal that the reason Mr Efobi had not been offered any of the positions was that his applications were of a low standard, and not tailored to the particular posts he was applying for. The Tribunal dismissed the race discrimination claim, but the Employment Appeal Tribunal (EAT) held that it should have given more weight to the employer’s failure to explain how each individual recruitment decision was taken and specifically why Mr Efobi was rejected for each.

The Court of Appeal has now restored the Tribunal’s decision. There was no burden on the employer to explain its treatment of the employee until he had established that there was a ‘prima facie’ case of discrimination. In the absence of any evidence that race was part of the reason that his applications were rejected, the claim inevitably failed.

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