Efobi v Royal Mail: Supreme Court clarifies operation of the burden of proof in Equality Act claims

23 July, 2021

The Supreme Court has today handed down judgment in Efobi v Royal Mail Group Ltd [2021] UKSC 33 clarifying the operation of the burden of proof in claims for contraventions of the Equality Act 2010 and reinforcing the availability of adverse inferences against respondents who fail in appropriate cases to call evidence from relevant individuals.

Section 136 of the Equality Act 2010 provides for a two-stage process for determining claims under the Act. At the first stage, the court or tribunal must determine whether there are facts from which it could decide, in the absence of any other explanation, that a party has contravened the Act. If there are, the claim will succeed unless, at the second stage, that party shows that there was not a contravention.

The unitary regime in section 136 replaced a number of provisions in now-repealed statutes separately governing claims for discrimination by reference to specific protected characteristics. Those legacy provisions were worded differently to section 136, and while they had been the subject of appellate decisions, section 136 itself had not previously been considered by the Supreme Court.

The appeal to the Supreme Court concerned two issues, both concerning the first stage of the section 136 process: whether the claimant party bears a probative burden, and the availability of adverse inferences against a respondent party from conduct in litigation, including in particular the failure to call evidence from relevant individuals involved in allegedly discriminatory conduct.

On the first issue, the Supreme Court has confirmed that the claimant party continues to bear a probative burden at the first stage, consistently with the operation of the legacy provisions, and despite recognising that the new language of section 136 could be misunderstood as removing such a burden. In doing so, however, the Court also indicated that as a matter of practice, it will seldom be safe to conclude that the first stage is not satisfied until after hearing evidence from the respondent party, with the result that submissions of no case to answer should be highly unusual in discrimination claims.

On the second issue, the Supreme Court held that, while no adverse inferences could be drawn at the first stage from the fact that a respondent party has not provided an explanation, adverse inferences from a failure to call as witnesses relevant individuals are in principle available, and that these should be considered by first-instance courts and tribunals using their common sense. That finding provides a firm basis for claimants alleging discrimination to argue for such inferences in appropriate cases and strengthens the protection of the Equality Act, and should operate as a strong disincentive to respondents tempted to take a ‘you prove it’ approach to discrimination claims whilst shielding relevant decision-makers from giving evidence.

A copy of the Judgment can be found here.

Charles Ciumei QC and Benedict Tompkins acted pro bono for the appellant, Mr Efobi, instructed by Advocate.