The Equality Act 2010 provides protection against unlawful direct and indirect discrimination, harassment and victimisation for the protected characteristic of 'race'.
Employers are liable for acts of discrimination, harassment and victimisation carried out by their employees ‘in the course of employment’, whether or not the employer knows about or approves of those acts. However, employers can defend a claim by showing that they took all reasonable steps to prevent their employees from acting unlawfully. Employees are also personally liable for their own unlawful acts where the employer is liable because they were committed during the course of employment.
If there are facts from which a tribunal could decide that an employer has committed an unlawful act, then the tribunal must hold (in the absence of any other explanation) that a contravention of the Equality Act 2010 has occurred, unless the employer can show it did not contravene the provision in question.
In practice this means the claimant initially has to produce evidence which demonstrates to a high degree of probability that discrimination has occurred. If the claimant establishes a case which at first sight indicates that discrimination could have occurred, then the ‘burden of proof’ switches to the employer, which then has to show a non-discriminatory reason for its actions. This portion of the law was contested in this case.
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 (ET) 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.
At his appeal to the Supreme Court, the claimant argued that the law had not been applied correctly by the lower courts, stating that the law does not put the burden of proof on claimants. The claimant’s argument was on the basis that the law had changed when the Equality Act 2010 replaced the Race Relations Act 1976.
The Supreme Court held that although the wording surrounding burden of proof changed when the Equality Act 2010 was introduced, the law has not changed and claimants are still obligated to provide proof of discrimination when bringing a claim to an employment tribunal.
The Court relied on the explanatory notes which accompany the Equality Act 2010, which states 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”.
Although the Employment Appeal Tribunal found that the Equality Act 2010 did not require claimants to present a case against an employer from which it could be concluded that there was a case to answer on discrimination, this Supreme Court judgment sets a different precedent. Its decision reaffirms that 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.
This decision has been appealed at every stage but this Supreme Court judgment can no longer be appealed. This doesn’t mean, however, that employers cannot take precautions. Employers should keep in mind that when making recruitment decisions, it is key that they make notes of the reasons for any decisions made, ensuring they record that only objective factors were taken into account. This is especially important for internal applicants who may raise future complaints against rejections.