In February I made reference to the unfortunate decision of the Court of Appeal in Royal Mail Group Ltd v Efobi [2019] IRLR 352 to overturn the Employment Appeal Tribunal’s earlier interpretation of section 136 of the Equality Act 2010 that made it easier decision to establish that the burden of proof at which a Respondent must show there was not a discriminatory purpose had shifted.

In simple terms, before the EAT’s decision in Efobi the general position, as set out by the House of Lords in Igen v Wong but which related to previous discrimination law and not the Equality Act, was that when bringing a discrimination claim a claimant must show a prima facie case that the treatment complained of was because of the relevant protected characteristic.

In direct discrimination claims especially this burden of proof could sometimes be a task truly worthy of Sisyphus. And because that claimant representatives know this is the task that will face them, and because they do not following the stripping away of pre-issue disclosure mechanisms as part of the ‘red tape challenge’ have much mechanism of obtaining such evidence they do not support potentially good discrimination claims. The EAT’s decision in Efobi subtly changed the requirement. The judge found that there was no burden of proof upon the claimant which then ‘shifts’ to the Respondent, instead there is an obligation upon the tribunal (and not just the claimant) to identify a prima facie case that the treatment was because of a protected characteristic:

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.  If, on the other hand, there are such facts, but A shows he did not contravene the provision, the ET cannot find the contravention proved …  Section 136 prohibits a submission of no case to answer, because it requires the ET to consider all the evidence, not just the Claimant’s, and because it is explicit in not placing any initial burden on a Claimant.  The word “facts” in section 136(2) rather than “evidence” shows, in my judgment, that Parliament requires the ET to apply section 136 at the end of the hearing, when making its findings of fact.  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 is not a ground-breaking change, it would still be difficult for a claimant to make a decision to bring a case based on limited evidence but id did go a small way to reducing the evidential deficit that is forced on claimants bringing a case but even this change was overturned by the Court of Appeal  in both the Efobi appeal and in Ayodele v Citylink Ltd [2018] IRLR 114.

In an interesting development on 5 November the Supreme Court granted the claimant in Efobi permission to appeal the Court of Appeal’s judgement. So, if nothing else, Igen v Wong will at least be refreshed for a post Equality Act 2010 world but maybe there are more surprises in store?