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All Change: The Burden of Proof Provision under S. 136 Equality Act 2010

In Efobi v Royal Mail Group Limited UKEAT/0203/16/DA, 10 August 2017, Laing J, the EAT has handed down an important decision on Section 136 Equality Act 2010 (‘EqA’),

...the burden of proof provision in discrimination cases. S. 136(2) EqA provides that:‘[i]f there are facts from which the court 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.’

The Facts

Mr Efobi, a black African from Nigeria, worked as a postman. He made numerous unsuccessful applications to Royal Mail for IT-related jobs.  While allowing some of Mr Efobi’s claims, the ET dismissed his direct race discrimination claim in regarding his rejected job applications, holding that he had not proved facts from which the tribunal could conclude he had been discriminated against.    

The Decision

Contrary to previous understanding of how the burden of proof provision operated in a line of cases starting with Igen v Wong [2005] ICR 931, which put the initial burden of proof on the Claimant, the EAT, relying on the wording of S. 136(2), held that there was no initial burden of proof on the Claimant. Instead, the tribunal was required to consider the evidence in its totality and from all the sources at the end of the hearing and that it was misleading to refer to a shifting of the burden of proof [para. 78 of the judgment].

Laing J acknowledged that this interpretation of S. 136 differed not only from the Explanatory Notes to EqA, but also from the way in which the burden of proof provision was understood in Igen v Wong. However, that case was decided under a previous statutory provision.   Laing J also accepted that her interpretation of S. 136 went further than required by Article 8.1 of Directive 2000/43, the Race Equality Directive, but Article 8.2 of the Directive allowed Member States to introduce rules of evidence more favourable to Claimants. In any event there had not been many cases considering the effect of S. 136.

This significant case not only provides clarification about how to approach the burden of provision, but also provides a salutary reminder to employers to ensure that all the relevant evidence is before the tribunal. 

Barbara Zeitler / 1st Sep 2017


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