The Employment Appeal Tribunal has held that claimants in discrimination cases do not bear the initial burden of proof.

burden of proof

The Claimant, in this case, was a black African born in Nigeria. He made in the region of 33 job applications for internal roles within the company where he worked. All were unsuccessful.

He believed that he was unsuccessful because of his race and brought a claim for direct race discrimination.

At the time of the applications the form asked external applicants to provide details of their town and country of birth. An applicant was also required to upload their CV.

The employee uploaded a generic CV for each of his applications. Despite the fact that he did not need to do so as an internal applicant, he also included details of his town and country of birth on his applications. The tribunal found that his CV provided no context, illustration or narrative, with no information specifically tailored to any of the roles he applied for.

The employee was long-listed for two positions and was short-listed and interviewed for another role. However, all applications were ultimately unsuccessful.

The employer did not call any of the recruiters or managers involved in the unsuccessful applications to give evidence at the tribunal hearing. The tribunal accepted the evidence of the witnesses the employer did call that the successful candidates all had significantly longer and more relevant experience than the Claimant, and had produced more detailed and relevant CVs. It concluded that there was no reason to believe on the balance of probabilities that the information given by the Claimant on his applications of his town and country of birth was searched for, viewed or taken into account at any stage in the processing of his applications.

The tribunal said that it was for the Claimant to prove facts from which it could conclude that there had been discrimination.

It found that no evidence had been adduced of the race of the successful candidates or those long-listed or short-listed. It could not therefore make any findings as to whether they were appropriate comparators for the purposes of the Claimant’s direct discrimination claim.

The tribunal said that the Claimant had not proved facts from which it could conclude that recruiters or hiring managers knew of his protected characteristics, or these were relevant to or influenced the decisions not to short-list, long-list, interview or appoint him for any of the jobs he applied for. It said that there was ‘ample evidence’ to conclude that there were other sound reasons untainted by unlawful discrimination for the rejection of his applications at various stages.

Allowing a subsequent appeal, the Employment Appeal Tribunal said that the tribunal had not adopted the correct approach. It should have identified the thought processes of the decision-makers who rejected the applications. It should also have considered whether it was appropriate for them to draw an inference about the race and national origins of the successful candidates. It should also have considered each of the applications individually.

Burden of proof in discrimination claims

The Employment Appeal Tribunal said that there is no burden of proof placed on a Claimant to prove discrimination. It said that a tribunal is required to consider all the evidence at the end of a hearing, to decide whether or not there are facts from which it could conclude that discrimination has occurred. If there are facts and no reasonable explanation is offered by the employer, the tribunal, it said, must conclude that discrimination has occurred. The Employment Appeal Tribunal said that in this case the tribunal had failed to understand the burden of proof or apply it correctly. It had incorrectly stated in several parts of its judgment that it was for the Claimant to prove facts, or that the Claimant had failed to prove facts, from which the tribunal could conclude discrimination had occurred. It was not, it said, for the Claimant to prove anything, but for the tribunal to look at the facts as a whole.

The claim has been remitted to a differently constituted tribunal for rehearing.

Case reference: Efobi v Royal Mail Group Limited