Efobi asserted the tribunal had applied the wrong burden of proof to his claim because the Equality Act 2010 made a substantive change in the law to be applied.
Specifically, s 54A(2) of the Race Relations Act 1976 states discrimination or harassment occurs ‘where…the complainant proves facts’ whereas s 136(2) of the Equality Act 2010 states discrimination or harassment occurred ‘if there are facts from which the court could decide…’.
The Supreme Court considered this question of burden of proof and whether adverse inferences could be drawn from Royal Mail’s decision not to call witnesses who had actually dealt with Efobi’s job applications.
In a judgment handed down last week, however, the court dismissed Efobi’s appeal, concluding the change in the language used in the Equality Act ‘has not made any substantive change in the law’.
Jeremy Coy, senior associate at Russell-Cooke, said the decision would ‘come as a relief for employers’.
‘It is not enough for someone to merely assert that they have been discriminated against,’ he said.
‘It’s a general principle of civil law that claimants must provide evidence that shows, on the balance of probabilities, that their allegations are well founded. This decision reinstates the initial understanding of the burden of proof in discrimination cases.
‘A claimant must first show facts that would tend to show discrimination had occurred and it will then be for an employer to provide evidence to show otherwise.’
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