Discrimination and the Burden of Proof – Supreme Court Clarifies the Law

Ever since a crucial alteration was made to the wording of the Equality Act 2010, the question of where the burden of proof lies in employment discrimination cases has been the focus of…

Jul 30, 2021

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Ever since a crucial alteration was made to the wording of the Equality Act 2010, the question of where the burden of proof lies in employment discrimination cases has been the focus of intense legal debate. An important Supreme Court ruling has, however, resolved the issue once and for all.

The case concerned a postman who was born in Nigeria and identified as black African and Nigerian. He had qualifications in computing and wished to obtain a managerial or technical role within Royal Mail. During a period of more than four years, he made over 30 applications for such a position, all of them unsuccessful.

He launched Employment Tribunal (ET) proceedings, asserting that the rejection of his applications was the result of direct or indirect race discrimination. His claim failed before the ET and, although his challenge to that decision succeeded before the Employment Appeal Tribunal, the latter ruling was reversed by the Court of Appeal.

Ruling on his challenge to that outcome, the Supreme Court noted that the Act sets a two-stage test in employment discrimination cases. Claimants have the burden of proving primary facts from which ETs could, in the absence of any alternative explanation, infer that discrimination has taken place. If claimants succeed in passing that test, the burden shifts to employers to satisfy ETs that discrimination in fact played no part in the treatment compained of.

The central issue in the case was whether a change to the wording of Section 136(2) of the Act had altered the burden of proof in such cases. The wording relating to the first stage was altered from ‘where…the complainant proves facts’ to ‘if there are facts from which the court could decide’. The postman asserted that the alteration changed the law so that there was no longer a burden on a claimant to prove anything at the first stage. ETs, it was argued, were instead required to consider all the evidence put before them neutrally.

Dismissing the appeal, however, the Court ruled that the altered wording had not brought about any substantive change in the law. The aim of the alteration was to make it clear that ETs can take into account evidence from all sources at the first stage, not just that adduced by claimants. Such evidence might include material relied on by an employer to rebut or undermine a claimant’s case. The only evidence that had to be ignored at the first stage was any explanation given by an employer for the treatment complained of. Such explanations fell to be considered at the second stage.

It remained the law, therefore, that the burden of proof does not shift to an employer to explain the reasons for its treatment of a claimant unless the claimant is able to prove facts from which unlawful discrimination can properly be inferred.

The ET could not, in the postman’s case, be faulted in its refusal to draw adverse inferences from the fact that Royal Mail did not call evidence from the many individuals who actually dealt with his unsuccessful applications. Even had he succeeded in showing that a recruiter was aware of his race and that the successful candidate was of a different race from him, that would not have been sufficient to enable the ET to conclude, in the absence of any other explanation, that unlawful discrimination had occurred.

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