Employment tribunals have, over the course of many years, adopted a two-stage approach to discrimination claims. First, it must assess whether the claimant has established facts from which it could decide on balance, in the absence of any other explanation, that the employer has been guilty of discrimination. If it does so, it goes on to the second stage, in which the employer has the opportunity to show that there was another innocent explanation for their conduct.
In the case of Royal Mail Group Ltd v Efobi, the issue was whether that approach under which the claimant bears the initial evidential burden was still correct, given that the wording in the Equality Act 2010 was different from that used in the previous discrimination statutes under which the approach had first been formulated.
Mr Efobi, a black Nigerian and citizen of Ireland, held both graduate and post-graduate qualifications in information systems. However, while working as a postman he had made over 30 applications for internal IT posts which had all been rejected.
He believed that Royal Mail was subjecting him to race discrimination when rejecting his applications. Accordingly, he brought claims which included direct race discrimination in the employment tribunal.
However, his claims were dismissed as he had not provided facts from which the tribunal could conclude that the recruiters or hiring managers knew of his race or national origins, or that this influenced any of their recruitment decisions.
Efobi appealed, and in the Employment Appeal Tribunal it was held that the burden of proof had been applied incorrectly.
In particular, it was found that the initial burden was on claimants to show facts from which a tribunal could infer discrimination had occurred should not be followed and that the tribunal should consider all relevant evidence without there being any specific obligation on claimants.
The employer appealed successfully but the case proceeded to eventually reach the Supreme Court.
The Supreme Court held that the change of wording in the legislation had not affected the approach to the burden of proof that had been developed. The employment tribunal had been correct when it had considered that the burden was on the claimant at stage one to establish a prima facie case of discrimination against the employer.
While as a matter of practice, it will seldom be safe to conclude that the first stage is not satisfied until after hearing evidence from the respondent party. On the facts the employment tribunal had been entitled to conclude there was insufficient evidence to establish a prima facie case at stage one given that those making the recruitment decisions had not been made aware of the applicant’s race or nationality. The fact that the employer did not call any decision-makers as witnesses was not grounds on which the tribunal had to draw an inference of discrimination.
It remains that the legal burden is on the claimant to show facts from which an inference of discrimination can be drawn.
In a recruitment situation, those shortlisting for the post should be able to show that they based selection on objective grounds. In practice a failed applicant who challenges the decision on grounds of discrimination will find it difficult to succeed if it can’t be shown that information regarding their protected characteristics was known by those making the decisions.
Employers should take this into account when assessing the risks posed by their recruitment processes, particularly in the early stages. Care should be exercised regarding what steps are taken to vet an applicant. For example, if there is evidence social media has been used this may reveal irrelevant factors about the applicant that might still give them grounds to believe that they had been discriminated against if they are rejected.
Chris Kisby is an employment law partner at Gateley Plc