The Supreme Court has ruled that someone making an allegation of discrimination at a tribunal must have some evidence to prove detriment. It is not enough to simply to assert they have been discriminated against.
This ruling reaffirms current law, that the burden of proof is essentially on the claimant, with the Court saying that Tribunals will “want to be certain of any link before looking to the employer to explain why it acted as it did”.
The ruling arose from a case brought against the Royal Mail by Mr Efobi, a postal worker, who identifies as black African and Nigerian. He claimed indirect and direct discrimination, harassment on the grounds of race and victimisation at work after he was rejected by the company from more than 30 IT and management jobs between 2011 and 2015.
The initial ET judgment upheld the victimisation and harassment claims, but dismissed the discrimination claims on the basis that there was no evidence that the Royal Mail’s actions were linked to his race. However an appeal to the Employment Appeal Tribunal succeeded on the grounds the ET had wrongly interpreted section 136(2) of the Equality Act 2010, which deals with the burden of proof in discrimination cases, and had made errors of law in assessing the evidence. Royal Mail challenged this judgement at the Court of Appeal which reversed that decision. Permission to appeal to the Supreme Court was then granted on whether a change in the wording of the equality legislation had altered the burden of proof in employment discrimination cases.
The Supreme Court found the change in wording between the Race Relations Act 1976 and the Equality Act 2010, that replaced it, did not amount to a change in the law, and therefore it did not remove the requirement for a claimant to prove that they had been discriminated against.
