Supreme Court rules – Claimants need to provide evidence of discrimination

Supreme Court rules – Claimants need to provide evidence of discrimination


  • Date: Thursday 26th August 2021
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The Supreme Court has ruled that a claimant alleging discrimination at an employment tribunal must provide evidence to show they were discriminated against in the first instance.

In the case Mr Efobi, who identified as black African and Nigerian, claimed he had been discriminated against by the Royal Mail when it rejected him for more than 30 IT and management jobs over a four-year period. He was a postman and wanted to change roles as he held IT qualifications.

In 2015, Mr Efobi raised a claim for indirect and direct race discrimination in relation to his job applications and harassment on the grounds of race. The tribunal found that as Mr Efobi presented no evidence his claim for discrimination was dismissed.

This finding was subsequently upheld by the Court of Appeal and the Supreme Court who found that it was up to the claimant to provide evidence of discrimination and if no evidence was presented the claim would fail. The court found that only if the claimant provided evidence would the burden of proof shift to the employer who would then need to provide their own evidence that no discrimination had occurred.

The explanatory notes that accompany the Equality Act 2010 state “in any claim where a person alleges discrimination, harassment or victimisation under the Act, the burden of proving his or her case starts with the claimant.”

The findings give a level of reassurance to employers that spurious, unfounded claims of discrimination will be dismissed. It is not enough for someone to just say they have been discriminated against and not back this up. A claimant must first show a tribunal the facts that would tend to show discrimination has occurred and only then will it be for the employer to provide evidence to show otherwise.

The case is a timely reminder for employers to:

  1. Retain records during recruitment processes
  2. When rejecting a job applicant, this must be done on objective grounds based on criteria such as skills, knowledge and qualifications so that if required you can prove that no discrimination has occurred during your selection process.

Source: Gavin Parrott


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