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The burden of proof in discrimination claims

Unlawful discrimination and harassment claims frequently raise complex legal and factual issues while prosecuting and defending them can prove highly stressful, time-consuming and, expensive.

Along with other forms of discriminatory behaviour, the Equality Act 2010 makes it unlawful for employers to discriminate against employees by treating them less favourably because of a protected characteristic such as race, disability or sex than they treat comparable staff who do not have that characteristic. It also prohibits harassing employees by engaging in unwanted behaviour relating to a protected characteristic that violates or is intended to violate their dignity or to create an intimidating, hostile, degrading, humiliating or offensive working environment for them.

Employment tribunals can award substantial compensation and make appropriate recommendations if claims of unlawful discrimination and harassment in the workplace succeed. However, it will often be difficult to prove unlawful discrimination or harassment because of the need to show a causal connection between the alleged discrimination or harassment and a relevant protected characteristic.

Merely having such characteristic and being harassed or treated less favourably than a comparator will seldom of themselves be enough to establish unlawful treatment. A female employee, for example, may be denied the promotion that is given to a comparable male colleague but it does not follow that she has been the subject of unlawful sex discrimination. To prove that she must go further by showing that on the balance of probability the denial of promotion is referable to her protected characteristic of sex.

This requirement for a causal connection can put employees at a distinct disadvantage since in many cases only the responsible employer will know the true reason for the treatment of which complaint is made and there will be little, if any, direct evidence of this being referable to the relevant protected characteristic.

To combat this disadvantage the law adopts a two-step approach to determining whether unlawful discrimination or harassment has occurred.

The first step is to decide whether there are facts (and/or inferences properly to be drawn from those facts) which would justify finding that on a balance of probability there has been unlawful discrimination or harassment – in other words, whether there is a ‘prima facie’ case of conduct breaching equality legislation. In deciding this question the fact that there may be an alternative reason or explanation for the offending conduct that prevents it breaching the legislation is ignored.

Of course, the employer may offer an alternative explanation but at this stage whether it does and, if so, what that explanation is will neither establish nor rebut a prima facie case of unlawful discrimination or harassment.

If the facts as found by the employment tribunal and any inferences properly to be drawn from these establish a prima facie case of discrimination, harassment or other conduct violating the employee’s rights under the 2010 Act then the claim will succeed unless the employer proves on a balance of probability that there has been no such breach. It is only at this second stage of the enquiry that the employer needs to come up with an adequate alternative explanation or lawful excuse for the offending behaviour.

This two-step approach to the burden of proof is currently enshrined in section 136 of the Equality Act 2010, which is in the following terms:-

136         Burden of proof

(1)          This section applies to any proceedings relating to a contravention of this Act.

(2)          If there are facts from which the court [‘the court’ for present purposes includes the employment 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.

That the employer (‘A’) has the onus of disproving a prima facie case of unlawful treatment under the 2010 Act by coming up with a convincing alternative explanation has never been in doubt.

However, the 2017 judgment of the Employment Appeal Tribunal (‘the EAT’) in Efobi v Royal Mail Group Ltd [2017] IRLR 956 caused something of a stir in legal circles when it interpreted the opening words of s.136(2)  – ‘If there are facts from which the court could decide…’ as relieving the claimant employee of the burden of proving anything.

According to the EAT section 136(2) required the employment tribunal to wait until the end of the hearing before considering all the evidence provided (including any provided by the employer) and only then deciding whether there were facts from which it could decide, in the absence of an alternative explanation, that the employee’s rights under the Act had been violated. If there were such facts and the employer offered no such explanation then the claim would succeed.  If, on the other hand, there were such facts but the employer could show it had not infringed the employee’s rights then the claim would fail.

In discrimination and harassment cases the employee will usually give evidence first and the employer second. In Efobi the EAT went on to say section 136 actually prohibited the employer from asking the employment tribunal to dismiss the Claim after hearing only the employee’s evidence on the ground that it failed to disclose a prima facie breach of the 2010 Act:

The case was appealed and on the 23rd July 2021 the Supreme Court overruled the EAT’s interpretation of s. 136 in a judgment that re-established that the onus is squarely on the claimant employee to make out a prima facie case of discrimination, harassment or other contravention of the 2010 Act.

The Supreme Court also ruled that the EAT was wrong to suggest section 136(2) prohibits the employer from submitting at the conclusion of the employee’s evidence that there is no case to answer or the tribunal from dismissing the Claim if it is clear by this point that the claim is entirely hopeless. If it is plain from the employee’s evidence that there is simply no basis for alleging discrimination or other breach of the 2010 Act, the tribunal is not legally obliged to hear evidence from the employer just in case it comes to the claimant’s rescue and makes a case against itself. That said, the Supreme Court stressed it will rarely be appropriate to dismiss a claim on the basis that it fails to disclose a breach of the 2010 Act after hearing from the employee alone.

Employees are well advised to conduct a very careful review and analysis of the known facts, their legal implications and the evidence that supports or might rebut such claims before initiating employment tribunal litigation. 

For their part, employers will want to take all reasonable steps to prevent discrimination and harassment in the workplace given the distress and harm these occasion employees and the disruption, expense and reputational damage they can cause their business. Where breaches of equality legislation are alleged they too will be well-advised to pay very careful attention to the facts, evidence and legal issues involved. This is especially so if employment tribunal litigation has commenced since there will be little prospect of prevailing on a tribunal to dismiss a case – even one that appears to have very little merit – without presenting evidence in rebuttal and fully defending the claim at its hearing.



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