The claimant in this case worked as a postman. He made over 20 unsuccessful applications for IT-related jobs with his employer and claimed his rejections were because he was of Nigerian descent. He also alleged that a number of the employer’s other actions towards him – refusing to allow him to finish his shift in time to attend a wedding, filming him covertly in order to gather evidence for disciplinary proceedings, and suspending him from driving duties – amounted to discrimination and harassment on the grounds of race.
The employment tribunal upheld the claim of harassment after the employer refused to allow the claimant’s shift to finish on time to attend a wedding. They also upheld a separate claim for victimisation, after the claimant suffered a detriment following the submission of his discrimination claim.
However, they dismissed all claims of discrimination relating to Efobi’s job applications being refused, as the claimant could not clearly evidence that these rejections were due to his race. He appealed.
The EAT decided the Equality Act 2010 did not require claimants to present a case against an employer from which, on the face of it, it could be concluded that there was a case to answer on discrimination.
Instead they expressed the opinion that it was for tribunals to decide from all the facts of the case and “in the absence of any other explanation" that a person has contravened the provision concerned.
They decided the ET erred in placing a ‘burden of proof’ on Efobi to prove he suffered discrimination, whilst also being unable to assess all the facts after failing to hear the respondent’s explanation of the claimant’s allegations.
Court of Appeal
The Court of Appeal overturned the ruling of the EAT and, in citing the decision of Ayodele v Citylink Ltd , confirmed the original ET did not err by applying a two stage burden of proof test for assessing claims of discrimination.
The CA highlighted that employers will only be required to provide an explanation of any alleged discrimination providing the claimant can present evidence which leads the tribunal to conclude, on the balance or probabilities and absent any explanation, that discrimination has occurred.
It was ruled that the claimant failed to provide sufficient proof of discrimination as, although there was a suggestion of discriminatory workplace culture highlighted in successful harassment and victimisation claims, he could not present a prima facie case that his job applications were rejected due to his race.
This decision reaffirms the initial burden of proof in a discrimination claim is placed on the claimant. The claimant has to first persuade a tribunal that, on the balance of probabilities, discrimination is likely to have occurred before the respondent will be asked to give their explanation.
When making recruitment decisions, it is key that employers make notes of the reasons for any decisions made, ensuring that these record that only objective factors were taken into account. This is especially important for internal applicants who may raise future complaints against rejections.