In this third post on direct discrimination I am going to comment on the role of section 136(2) of the Equality Act which provides that when considering a discrimination complaint that
If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
Section 136 is meant to simplify the process by which discrimination claims are considered in recognition of the difficulty proving these. The Explanatory notes on this section refer to this section ‘shifting the burden of proof’ to a respondent: “This section provides that, in any claim where a person alleges discrimination, harassment or victimisation under the Act, the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act.”
The idea of shifting the burden has its roots in equality legislation that predated the Equality Act 2010 as with so much positive employment protection in the UK it was a creation of EU law (Council Directive 97/80/EC). In the domestic context the definitive explanation is found in the House of Lords Decision in Igen v Wong. Although interpreting the Sex Discrimination Act the House of Lords set out a two stage approach an employment tribunal must follow when considering a discrimination complaint.
Stage one – When bringing a discrimination claim the complainant is the one who is under a burden of proof to demonstrate to the tribunal that there are facts from which the tribunal could conclude in the absence of an adequate explanation to the contrary that the Respondent treated the complainant less favourably because of a protected characteristic. Colloquially this is often referred to as the prima facie test (because nothing makes law more accessible than throwing in some latin!)
Stage two – If the complainant is successful in meeting the test in stage one the n the respondent (usually the employer) that there is an alternative and preferable explanation for the conduct complaint of. For example, ‘my client did not dismiss Mr X because he is 68 years old, they dismissed him because he was shit at his job and spent the whole working week staring at his smartphone!; although perhaps using more lawyerly language to put their case.
The significance of stage one is that, excluding for the moment the alternative explanation the respondent may advance (except insofar as it helps the complainant), if the claimant puts forward a convincing case based on facts in evidence the burden shifts from them to the employer. In other words, it is no longer for the complainant to prove they were discriminated against but for the employer to positively prove they did not discriminate against the worker. If they can’t do that then then the tribunal must find there is discrimination.
Enter the Equality Act 2010
This two stage process still applies in the tribunal following the enactment of the Equality Act 2010, and specifically section 136(2) of the Act. Broadly speaking it was assumed that although not worded the same the burden of proof provisions in the Equality Act 2010 were the same as set out in Igen v Wong (in fact that assumption was correct, as well shall see).
In 2017 the Employment Appeal Tribunal in Efobi v Royal Mail Group Ltd  IRLR 956 challenged that view and, in the process made it potentially easier for a short while for complainants to win discrimination complaints.
Mr Efobi was a black male from Nigeria, he was employed by Royal Mail as a postman but had graduate and postgraduate degrees in Information Systems and Forensic Computing. Mr Efobi had made over 22 applications for posts working for Royal Mail in the computing field but he was unsuccessful in each and every application. He contended that the reason for this was due to race. In the Employment Tribunal the two stage test in Igen v Wong was applied and the tribunal determined that Mr Efobi had not met the first stage of the test in that he did not show facts that satisfied the tribunal that the reason for his treatment was race; a key factor in this was the varied personnel who were independently involved in the case.
In the EAT the applicability of Igen v Wong to the new wording of section 136(2) was challenged, specifically it was argued that a discrimination complainant does not have a burden to proof discrimination occurred. Although the explanatory notes to the Equality Act 2010 (cited above) do make reference to a burden when it states that in “any claim where a person alleges discrimination … under the Act, the burden of proving his or her case starts with the claimant” this was not in the text of the Act itself which states (emphasis added) only that if “there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
The EAT accepted this argument finding that
Section 136(2) does not put any burden on a Claimant. It requires the ET, instead, to consider all the evidence, from all sources, at the end of the hearing, so as to decide whether or not “there are facts etc” … . Its effect is that if there are such facts, and no explanation from A, the ET must find the contravention proved.
It may therefore be misleading to refer to a shifting of the burden of proof, as this implies, contrary to the language of section 136(2), that Parliament has required a Claimant to prove something. It does not appear to me that it has done.
This removal of the burden from the claimant would, especially where an employer does not put forward relevant evidence or witnesses simplify the two stage process, make succeeding in a discrimination case easier. The amended test at which the presumption of discrimination ours would also seem to be somewhat lower than a prima facie one (at least on my reading).
Unfortunately, in late 2018 and last month the decision of the EAT was first overruled and then reversed in Ayodele v Citylink Ltd & Anor  IRLR 114 and Royal Mail Group Ltd v Efobi  EWCA Civ 18 and the Igen v Wong status quo was reversed.
It is now again the case that a claimant has to prove, often as a litigant in person , without legal advice, without necessarily having access to relevant evidence (as was the case in Efobi because of their defence strategy), without recourse to pre-claim enquiries as was allowed in section 138 of the Act that their employer (who of course has the benefits of all the things the claimant is without) treated them less favourably because of a protected characteristic. Is it any wonder that direct discrimination employment tribunal success rates are so low!
Time will tell whether Ayodele or Efobi will be appealed to the Supreme Court.