Burden of Proof in Discrimination Claims

Posted on August 25, 2017

In the case of Efobi v. Royal Mail Group Ltd, the Employment Appeal Tribunal departed from accepted wisdom and practice, and held that claimants do not bear the initial burden of proof in discrimination claims.   Instead it is for the Tribunal to consider all of the evidence, from all sources, to decide whether there are facts from which it can conclude discrimination has occurred.  This has potentially far reaching implications in discrimination cases.  Combined with the abolition of Tribunal fees, this may well encourage an increased number of discrimination claims.  Employers facing discrimination claims in the future will need to defend their cases carefully with this in mind.  For example, failing to call the alleged discriminators as witnesses would run the risk of adverse inferences being drawn from the lack of evidence, which could in turn lead to claims being more readily upheld.