• Robert Spicer

Race discrimination: burden of proof

RACE DISCRIMINATION

Burden of proof

Case Efobi v Royal Maul Group Ltd (2017) Morning Star, September 29, EAT

Facts E, a black African from Nigeria, was employed as a postman. He applied for 33 IT-related jobs with Royal mail. It was clear from his CV that he had a degree in Information Systems and was qualified in forensic computing. All his applications were rejected. He complained of direct and indirect race discrimination. The ET rejected the complaints. It found that E had not proved facts from which it could conclude that there had been discrimination. He had not brought evidence to show that successful applicants were appropriate comparators because there was no evidence as to their race or national origin. There was no prima facie case of discrimination. E appealed to the EAT.

Decision 1. The appeal was allowed and the case remitted to a different tribunal.

Section 136 of the Equality Act 2010 does not impose an initial burden of proof on claimants to show discrimination. The tribunal should consider all the evidence at the end of the hearing and decide whether or not there were facts from which it could infer discrimination.

Section 136 states that if there are facts from which a court could decide, in the absence of any other explanation, that a person contravened a provision in the Equality Act, the court must hold that the contravention occurred unless that person could show that they did not contravene the provision.

There could have been facts from which a court could have concluded that the employer had discriminated against E. The tribunal had failed to consider that possibility.

Case Efobi v Royal Maul Group Ltd (2017) Morning Star, September 29, EAT Facts E, a black African from Nigeria, was employed as a postman. He applied for 33 IT-related jobs with Royal mail. It was clear from his CV that he had a degree in Information Systems and was qualified in forensic computing. All his applications were rejected. He complained of direct and indirect race discrimination. The ET rejected the complaints. It found that E had not proved facts from which it could conclude that there had been discrimination. He had not brought evidence to show that successful applicants were appropriate comparators because there was no evidence as to their race or national origin. There was no prima facie case of discrimination. E appealed to the EAT. Decision 1. The appeal was allowed and the case remitted to a different tribunal.

Section 136 of the Equality Act 2010 does not impose an initial burden of proof on claimants to show discrimination. The tribunal should consider all the evidence at the end of the hearing and decide whether or not there were facts from which it could infer discrimination.

Section 136 states that if there are facts from which a court could decide, in the absence of any other explanation, that a person contravened a provision in the Equality Act, the court must hold that the contravention occurred unless that person could show that they did not contravene the provision.

There could have been facts from which a court could have concluded that the employer had discriminated against E. The tribunal had failed to consider that possibility.


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