UK: Discrimination - burden of proof ruling highlights need for employers to present positive case

In Efobi v Royal Mail the EAT has ruled that it is not incumbent on the claimant in a discrimination claim to prove a prima facie case: it is for the tribunal at the end of the hearing to consider all the evidence from all sources in determining whether there are facts from which it can conclude that discrimination has occurred. If so, the tribunal must then consider if the employer has offered an explanation for its actions proving that it did not discriminate.

Although this ruling is contrary to previous case law establishing that it was for the claimant to prove a prima facie case before the burden shifted to the employer, that was based on wording in the pre-Equality Act legislation which differs from that in the Equality Act.

The employee in this case claimed race discrimination in relation to his unsuccessful applications for other roles within the employer. The employer failed to present evidence as to the race or national origins of the successful candidates, nor did it call any of the decision-makers in the recruitment process to give evidence as to their thinking; instead it concentrated on the explanation for its rejection of the claimant's applications. The EAT noted that this was a risky approach as it could be seen as tacit acceptance of there being a case to answer. The case has been remitted to a fresh tribunal to apply the correct test to the evidence, with the employer limited to those witnesses called at the first hearing.

This change in approach makes it all the more important that an employer puts forward a positive case and adduces sufficient evidence to rebut the claimant's allegations, in particular ensuring they call at least one decision-maker as a witness.