One of the most striking and onerous aspects of discrimination law, at least from the point of view of an Employment Tribunal Claimant, is the so-called 'shifting or reverse burden of proof' found in section 136 of the Equality Act. This used to denote a presumption that the initial burden of proof was on the employee to establish a prima facie case of discrimination, at which point the burden would then shift to the Employer to rebut. This, they could do by explaining why there was a difference in treatment. 

A failure to adequately explain away the reason for the particular treatment complained of, can prove fatal to the Employer's case, as the Tribunal can go on to draw an adverse inference that the reason for the treatment was indeed due to discrimination.

In the Efobi case, the claimant was a postman. He had applied unsuccessfully for about 30 alternative jobs within the Royal Mail. His complaint to the Tribunal was that his successive job applications had all been rejected due to his race, which by virtue of his name and other factors was apparent to the recruiters. He also alleged the operation of nepotism and cronyism within the Royal Mail.

The issue that the Employment Appeal Tribunal (EAT) had to concern itself with, was whether the Employment Tribunal (ET) had erred in law. First, in failing to consider whether to draw an adverse inference of discrimination against the Royal Mail on the grounds of race, in circumstances where there was at least some evidence from which such an inference could have been drawn.

Secondly, in readily accepting secondary evidence from the Royal Mail suggesting that Mr. Efobi had been rejected for the various vacancies he had applied for due to the poor quality of his applications, whilst at the same time failing to request from the Royal Mail, evidence regarding the racial profile of long-listed, shortlisted and successful applicants. In the view of the EAT, this hampered the Tribunal in making findings of fact, whether by inference or otherwise regarding potentially real or hypothetical comparators.

Simply put, section 136 of the Equality Act states that if there are facts from which the Court could decide in the absence of any other explanation that a person had contravened the provision concerned, then the Court must hold that the contravention occured.

According to the EAT, section 136 does not place any burden on a Claimant. Rather, it requires the ET to consider the evidence in the round, from all available sources and at the end of the hearing, to decide whether or not there are facts from which the Court could make a decision.

Where a Respondent chooses without explanation, as was the case with the Royal Mail, not to adduce evidence about matters which are within its own knowledge (i.e., providing monitoring data on the racial profile of longlisted, shortlisted and successful applicants to rebut Efobi's claim), it runs the real risk that an ET will draw an adverse inference in deciding whether Section 136(2) has been satisfied. These inferences will then form part of the 'facts' for the purpose of Section 136(2).

The Efobi case shows that it is misleading to refer to a 'reverse or shifting burden of proof' as this implies, contrary to the language of Section 136(2) that Parliament has required the Claimant to prove something. This is a significant departure from the conventional interpretation of the burden of proof found in earlier cases such as Igen Ltd v Wong. However, in fairness, such cases interpreted the burden of proof provisions within the context of predecessor legislation such as the Sex Discrimination Act which is worded slightly differently to the Equality Act, 2010.

The case also highlights the legal and moral hazard Employers face, when they fail to conduct robust employment monitoring at key stages of the recruitment and selection process. Public Sector Employers in particular are under a specific duty to ensure that their people selection decisions are not discriminating against any particular protected group. Where an adverse impact is detected, it would be beneficial to an Employer's case to demonstrate to a Court that it not only had appropriate systems in place to track selection bias, but that it had acted on the data provided by these systems in order to address discrimination going forward. Doing nothing in the hope that a Claimant would find it difficult to convince a Tribunal that the burden had shifted, is clearly no longer a sensible option!

About the author

Glanville Einstein Williams is a Diversity and Inclusion Specialist