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Claimants do not bear the initial burden of proof in discrimination cases

Written by Brabners LLP

The EAT in the case of Efobi v Royal Mail Group Ltd has considered the burden of proof provisions for discrimination claims set out in section 136(2) and (3) of the Equality Act 2010 (EqA 2010) which state: (2) If there are facts from which the court (or tribunal) could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision. In the historical case of Barton v Investec Henderson Crosthwaite Securities Ltd, the EAT set out the guidance for tribunals on the burden of proof rules contained in section 63A of the Sex Discrimination Act 1975 (which the EqA 2010 has since replaced). The guidance held that ‘it is for the claimant, who complains of sex discrimination, to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant’.

Facts of the case

Mr Efobi is a black African who had worked as a postman for Royal Mail. However, he had hoped to secure an internal IT role at Royal Mail and consequently made 33 applications for various IT roles. All applications were unsuccessful. Mr Efobi believed that he was unsuccessful because of his race. Mr Efobi brought a claim for direct race discrimination in respect of the unsuccessful job applications. The tribunal dismissed Mr Efobi’s discrimination claim. Mr Efobi appealed the tribunal’s decision to the EAT.

EAT Decision

The EAT upheld the appeal, finding that the tribunal had erred in its approach by failing, amongst other things, to identify the thought processes of the specific decision-makers within Royal Mail who rejected Mr Efobi’s applications. The EAT also criticised Royal Mail’s failure to compel the various decision-makers to give evidence of the race of the successful candidates. With regards to section 136(2), the EAT concluded that section 136(2) does not place any burden of proof on a claimant. Instead, it requires a tribunal to consider all the factual evidence put before it holistically at the end of each hearing, before only then deciding whether discrimination has occurred. If such evidence is discovered, and no reasonable explanation is provided by the employer, then the tribunal must conclude that discrimination has occurred.


The impact of this decision will be drastic, as it overrides the guidance on the burden of proof principles for discrimination previously set out in Barton. The case is also a useful reminder to employers of the importance in providing a decision-maker as a witness in any tribunal hearing.

Disclaimer: This bulletin is for general guidance purposes only and should not be used for any other purpose. This article is written by Brabners and reproduced with their permission. Brabners is a Limited Liability Partnership.