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Burden of Proof

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Was the obligation on a Claimant alleging discrimination to prove facts from which a tribunal could find discrimination changed by the Equality Act 2010?

No, held the Supreme Court in Royal Mail Group v Efobi, considering s136(2) of the Equality Act.

With the Equality Act, the wording in previous legislation on the burden of proof changed from 'where the complainant proves facts' to 'if there are facts'. This did not make a substantive change to the law. The previous wording was not entirely clear. At the first stage of the two-stage test, all the evidence should be considered, not only evidence from the claimant. The court noted that applying a basic rule of evidence, in civil cases (including employment disputes), the general rule is that an tribunal may only find that "there are facts" for the purposes of s136 if the tribunal concludes that it is more likely than not that the relevant assertions are true. If that is done, then at the second stage, the burden shifts to the respondent, just as under the old provisions.

The Supreme Court also observed that the EAT had been wrong in this case to hold that s136(2) meant that a Respondent could not submit that there was no case to answer at the end of the Claimant's evidence, but noted that it would seldom be safe to do so until the end of the hearing, after hearing all the evidence.

Thanks to Ed McFarlane of Law at Work for preparing this case summary.