Did the Equality Act 2010 make a substantive change to the burden of proof in discrimination claims? No, says Supreme Court.

Prior to the Equality Act 2010, anti-discrimination laws required the claimant to prove facts from which an employment tribunal could conclude in the absence of an adequate explanation, that the respondent had committed an act of discrimination. The Equality Act used a different language – leaving tribunals to determine if there were facts from which it could decide, in the absence of any other explanation, that the Equality Act had been contravened. In Royal Mail Group Ltd v Efobi [2021] UKSC 33, the Supreme Court unanimously ruled that the change in the statute’s language did not mean a change in the law.

Facts.

Mr Efobi (‘the Claimant’) identifies as black African and Nigerian. From 5 October 2011, he was employed as a postman, first through an agency and then directly by Royal Mail Group Ltd (‘the Respondent’) from 27 August 2013.

The Claimant held qualifications in IT. He made over 30 applications for positions with the Respondent between 30 December 2011 and 3 February 2015. His applications were unsuccessful.

In June 2015, the Claimant brought proceedings against the Respondent in the employment tribunal (‘the ET’), alleging indirect and direct race discrimination, plus harassment. His claim was later amended to include victimisation.

The Claimant succeeded with his complaints of harassment and one complaint of victimisation. His other claims were dismissed.

The EAT and Court of Appeal.

The Claimant appealed to the Employment Appeal Tribunal (‘the EAT’) on four grounds, one of which related to how the ET understood the burden of proof as set out in s136(2) of the Equality Act 2010 (‘the EqA’).

Compared with the legislation it succeeded, s136(2) of the EqA adopts different language in respect of the burden of proof in discrimination claims. It states:

‘If there are facts from which the court could decide, in the absence of any other explanation, that a person […] contravened the provision [of the EqA] concerned, the court must hold that the contravention occurred.’

In contrast, under s54A(2) of the Race Relations Act 1976, an ET could find discrimination where:

‘the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent […] has committed such an act of discrimination or harassment against the complainant.’

Since the EqA was passed, it had been assumed that, notwithstanding the difference in language, the assessment to be undertaken in discrimination claims was much the same.

This assessment was a two-stage process – a first stage, where the burden was on the claimant to prove facts that the tribunal could conclude, absent adequate explanation, amounted to unlawful discrimination; and a second stage, if the facts were proved, where the burden moved to the respondent to explain the alleged discriminatory treatment and show that there was no discrimination.

Despite this two-stage process, ETs were not required to divide hearings into two parts (indeed, they were discouraged from doing so). Moreover, there was nothing preventing an ET from taking account at the first stage evidence produced by the respondent in so far as it was relevant to deciding whether the burden of proof should shift.

However, before the EAT, Elisabeth Laing J found that s136(2) did not place any burden of proof on the claimant. Rather, it required the ET to consider all the evidence at the end of the hearing:

‘…if there are such facts, and no explanation from [the respondent], the tribunal must find the contravention proved. If, on the other hand, there are such facts, but [the respondent] shows he did not contravene the provision, the tribunal cannot find the contravention proved. Long before section 136 was enacted, industrial tribunals were discouraged from acceding to submissions of no case to answer at the end of an applicant’s evidence in a discrimination claim. Section 136 prohibits a submission of no case to answer, because it requires the tribunal to consider all the evidence, not just the claimant’s, and because it is explicit in not placing any initial burden on a claimant. […] It may therefore be misleading to refer to a shifting of the burden of proof, as this implies, contrary to the language of section 136(2), that Parliament has required a claimant to prove something. It does not appear to me that it has done.’

Elisabeth Laing J therefore held that the ET at first instance had wrongly interpreted s136(2) of the EqA as imposing an initial evidential burden of proof on the Claimant. She also found that the ET had erred in law in its assessment of the evidence.

The Respondent appealed to the Court of Appeal (Royal Mail Group Ltd v Efobi [2019] EWCA Civ 18). By the time the appeal was heard, the Court of Appeal had already over-turned a related case from the EAT (Ayodele v Citylink Ltd [2017] EWCA Civ 1913) on the correct interpretation of s136(2). As with Ayodele, the EAT’s decision was again overturned, with the Court of Appeal (Sir Patrick Elias, with whom LJJ Baker and Underhill agreed) holding that the EAT had fallen into error in its interpretation of s136(2) of the EqA.

The Supreme Court’s Decision.

The matter came before the Supreme Court on two grounds: (i) how is s136(2) EqA to be interpreted?; and (ii) was the ET at first instance entitled to not draw adverse inferences from the fact the Respondent adduced no evidence from anyone who dealt with the Claimant’s job applications?

By a unanimous decision (Lord Leggatt, with whom Lord Hodge, Lord Briggs, Lady Arden and Lord Hamblen agreed), the Supreme Court dismissed the appeal, holding that the EqA had not changed the burden of proof in respect of discrimination claims.

The Supreme Court accepted that s136(2) of the EqA requires an assessment of all the evidence but found that this did not amount to a substantive change in the law.

Lord Leggatt cited with approval the reasoning of Singh LJ in Ayodele for why the language had changed in the EqA – it was to make explicit that ETs were to consider all the evidence at the first stage of assessing discrimination claims, not just the evidence submitted by the claimant. Indeed, the Court noted that the language of the EqA had been modified in other ways (‘adequate explanation’ had now become ‘any other explanation’) to reflect changes in case law.

The Court went on to find that the claimant has the initial burden of proof in discrimination claims, in so far as she must prove those facts from which she wishes the ET to infer that, in the absence of other evidence, discrimination occurred. This, of course, is not the full picture, as the ET must take into consideration the respondent’s evidence also. But s136(2) has not altered this position vis-à-vis how discrimination claims are to be assessed.

Lord Leggatt also opined that the EAT was wrong to suggest that s136(2) prohibits an ET from dismissing a claim at the first stage because of the weaknesses of the claimant’s evidence. The ET is not obliged to wait to hear the respondent’s evidence just in case it ‘comes to the claimant’s rescue and makes a case against itself.’ The Court noted that it will ‘seldom be safe’ to dismiss a claim at the first stage, but there is nothing in s136(2) of the EqA that prevents an ET from doing so.

Finally, the Supreme Court dismissed the Claimant’s submission that the ET at first instance should have drawn adverse inferences from the Respondent’s failure to call the actual decision-makers who assessed the Claimant’s job applications. Lord Leggatt held that ETs should be free to draw, or decline to draw, inferences as they wish using their common sense. No legal test is required, and the decision whether to draw adverse inferences will be a question of fact:

‘Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.’

Commentary.

For many practitioners, following the surprising interpretation of s136(2) adopted by the EAT, the Supreme Court’s decision marks a welcome return to normality. The Court has conclusively (and unanimously) found that, in discrimination claims, the burden of proof must be understood very much as it always has been.

Neither has the Supreme Court radically altered the assessment that ETs must conduct. Indeed, Lord Leggatt’s judgment is fairly balanced. Thus, whilst the Court held that an ET may dismiss a ‘hopeless’ discrimination claim at the first stage (i.e., without having to consider the respondent’s evidence), it will ‘seldom be [a] safe’ course of action. It would be better to wait until the end of the hearing before a decision is taken.

However, as is so often the case with judgments of the Supreme Court, it is not so much the primary ground of appeal that is the most interesting as the secondary ground. Here, though the Court avoided encroaching upon the ET’s fact-finding role. Lord Leggatt did offer a list of factors that it may want to consider in deciding whether to draw adverse inferences from a respondent’s failure to produce evidence. For both claimants and respondents alike, the Court’s judgment underlines the importance of ensuring that sufficient enquiries are made to assess the relevance of the original decision-maker’s evidence.

Ryan Ross is a barrister at Farrar’s Building with a broad experience of employment law matters, including claims for discrimination, harassment and victimisation.

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