Claimants alleging discrimination must provide evidence at an employment tribunal, Supreme Court rules

Experts say decision is a reaffirmation of existing law and will be a ‘comfort’ to employers

The Supreme Court has ruled that someone making an allegation of discrimination at an employment tribunal (ET) must have some evidence to prove any detriment was caused by such acts in the first instance.

Experts say the judgement highlights that, in an ET, it is not enough for someone to assert they have been discriminated against, clarifying that the onus is on the claimant specifically to provide evidence.

Kate Hindmarch, partner and head of employment team at Langleys Solicitors, said that while this judgement is simply a reaffirmation of the existing law, the ruling would be a “comfort to employers” and a “[reminder] that the burden of proof is essentially” the claimant’s.

Hindmarch added she had seen cases where claimants had suffered unfavourable or detrimental treatment and had sought to claim discrimination because they believed it was connected to a protected characteristic. However, this ruling reiterates that tribunals would  “want to be certain of any link before looking to the employer to explain why it acted as it did”.

The ruling comes in regard to a case that was brought against the Royal Mail by Mr Efobi, who identifies as black African and Nigerian and worked as a postman for the company.

Efobi claimed indirect and direct discrimination and harassment on the grounds of race after he was rejected by the company from more than 30 IT and management jobs between 2011 and 2015. He later amended his claim to include victimisation at work as a result of bringing his tribunal claim.

Get more HR and employment law news like this delivered straight to your inbox every day – sign up to People Management’s PM Daily newsletter

The initial Employment Tribunal (ET) upheld the victimisation and harassment claims, but dismissed the discrimination claims on the basis that there was no evidence that the Royal Mail’s actions were linked to his race.

Following this, Efobi submitted an appeal to the Employment Appeal Tribunal and succeeded on the grounds the ET had wrongly interpreted section 136(2) of the Equality Act 2010, which manages the burden of proof in discrimination cases, and had made errors of law in assessing the evidence.

But Royal Mail challenged this judgement at the Court of Appeal which reversed that decision.

Permission to appeal to the Supreme Court was then granted on whether a change in the wording of the equality legislation had altered the burden of proof in employment discrimination cases.

However, the Supreme Court found the change in wording between the Race Relations Act 1976 and the Equality Act, which replaced it, did not amount to a change in the law, and therefore it did not remove the requirement for a claimant to prove that they had been discriminated against.

The court was also asked to look at when a tribunal may draw adverse inferences from the absence of a potential witness – on the basis that none were drawn by the initial ET when Royal Mail did not call as witnesses any of the actual decision makers involved in rejecting Efobi’s applications.

However, the Supreme Court found there was nothing in the initial ET’s judgment that suggested it thought it was not allowed to draw any adverse inferences from that fact – it was just not a conclusion that the ET came to.

Because of this, the Supreme Court unanimously dismissed Efobi’s appeal.

Commenting on the case, Kate Palmer, HR advice and consultancy director at Peninsula UK, said the ruling didn’t mean employers should not still take precautions against the risk of discrimination claims.

When making recruitment decisions, it is important employers make notes of the reasons for any decisions made to ensure they record that only objective factors were taken into account, she said. “This is especially important for internal applicants who may raise future complaints against rejections.”

David Ward, a partner in the employment team at Blacks Solicitors, said that well-evidenced discrimination claims would continue to succeed in employment tribunals.

“The precedent that evidence is required to pursue discrimination claims is well established,” he added, and that “discrimination is a very serious allegation and it is therefore understandable that claims should only succeed where there is credible evidence available in support”.

Ward said that while some cases involved “clear, contemporaneous evidence” which proves beyond any reasonable doubt that a person’s protected characteristic was the reason behind less favourable treatment, in other cases obtaining this evidence could be more difficult. However, claimants could obtain evidence through a Data Subject Access Request or covert recording, he said.

A Royal Mail spokesperson said: “Royal Mail is committed to promoting a culture of fairness, respect and diversity throughout its business. We are pleased that the Supreme Court’s decision has clarified the law in this area and supported the original tribunal’s decision.”

In a statement endorsed by Efobi, Essex Court Chambers, which represented Efobi, said the Supreme Court’s ruling clarified “the operation of the burden of proof in claims for contraventions of the Equality Act 2010 and [reinforced] the availability of adverse inferences against respondents who fail in appropriate cases to call evidence from relevant individuals”.