Prior to the equality legislation being harmonised under the Equality Act 2010 the legislation governing equality at work was found in a number of different acts. It was understood that the earlier equality legislation required employees to prove facts which, in the absence of an adequate explanation, meant that the employer should be treated as having committed an unlawful act of discrimination. The employer then had to prove that no discrimination occurred. This process was commonly referred to as the ‘shifting burden of proof’.

The EAT recently had to consider whether this principle continued to apply since the introduction of the Equality Act 2010 and held that, due to changes in the statutory language, the burden of proof in discrimination claims can no longer be regarded as a ‘shifting burden of proof’. The initial burden of establishing facts from which discrimination can be inferred does not sit solely with the claimant. Instead, in answering this question, the tribunal must consider all of the evidence from all sources as a whole. Although the explanatory notes to the Act refer to the ‘shifting burden of proof’, the EAT held that those notes were overridden in this case by the clear language of the statute.

In this case, E, a postman, applied for around 33 IT jobs with the Post Office and was unsuccessful in being appointed to any of the positions. He brought claims of discrimination against the Post Office relating to the applications and a number of other matters. The tribunal found that E had not succeeded in proving facts from which inferences of discrimination could be made and therefore his claims failed.

E successfully appealed to the EAT. The EAT held that the tribunal had approached the matter incorrectly because it had expected E to shoulder the initial burden of proof. The EAT held that the language in the Equality Act 2010 was significantly different to that of its predecessor legislation and required a different interpretation. The Equality Act 2010 does not place the initial burden of proof solely on the employee; instead a tribunal is required to consider all of the evidence from all sources as a whole and then decide if it considers that discrimination can be inferred. The EAT expressed the view that continuing talk of a ‘shifting the burden of proof’ was misleading.

Efobi -v- Royal Mail Group Ltd [2017] UKEAT 0203_16_1008