Guilty until proven innocent? Why the burden of proof change matters
The Employment Appeal Tribunal’s judgment in the case of Efobi v Royal Mail was published recently, and at first glance many people seem to have thought that it was a bit of a technical point, or just legal nit-picking, which wouldn’t make any difference to how things work in practice. However, here’s why in my opinion all employers should be sitting up and taking notice of the decision.
What was the case about?
The Efobi case was about an allegation of direct race discrimination. However, the principles that were established apply to any kind of discrimination.
Mr Efobi had made 33 different internal applications for IT roles within Royal Mail, but all had been unsuccessful. He believed that the reason for this was his race.
Royal Mail disputed the claim. In their defence, they focused on the reasons why they said Mr Efobi’s applications had been unsuccessful. They did not present any evidence about the thinking of the decision-makers or about the race of the other applicants for the positions.
The Tribunal dismissed Mr Efobi’s claim, but he appealed to the Employment Appeal Tribunal (EAT) on the grounds that the Tribunal had made an error of law in their decision.
What was the legal position previously?
Until the EAT’s decision in Efobi, the way that an Employment Tribunal would approach a discrimination claim would be to look at whether the Claimant in the case had established a basic case, and if the Claimant had done so, the burden of proof would then shift to the Respondent to show that discrimination had not occurred.
This was the position before the Equality Act 2010 was introduced, and although the wording of the relevant provisions of the Equality Act was slightly different from the preceding legislation, the case law after 2010 had followed the pre-existing position.
What did the case decide?
The fundamental point the Employment Appeal Tribunal decided was that there was no burden on the Claimant to establish a basic case, as had been previously thought. Instead, the Employment Tribunal needed to look at all the evidence ‘in the round’ and make a decision about whether there were “facts from which it could conclude discrimination had occurred.” If such facts are found and there is no reasonable explanation put forward by the employer, then the Tribunal must find that discrimination has occurred.
So is it a case of ‘guilty until proven innocent’ for employers?
Well, it isn’t quite as extreme as that, but it is certainly a very unwelcome development from an employer’s point of view.
The main effect of the decision is that employers will need to think carefully about how they defend allegations of discrimination. Rather than falling into the same trap as Royal Mail, who presumably felt they had done enough by focusing on their reasons for rejecting Mr Efobi’s applications, employers need to demonstrate evidence to show a lack of discriminatory motive. Otherwise, they risk the Tribunal drawing adverse inferences and potentially making a finding against them.
In particular, it remains to be seen what the effect will be in cases where the employer alleges the employee has a weak claim – if the Tribunal has to hear all the evidence ‘in the round’ before drawing a conclusion as to discrimination, then it is going to make it virtually impossible for weak cases to be weeded out before reaching a final hearing. This could be even more of an issue now that there are no fees payable to bring a claim.
It is possible that Royal Mail may appeal to the Court of Appeal, and we will keep you updated on any news on this.
If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]k).