Igen, again: Principles of proving and disproving discrimination

Advising on discrimination cases requires some consideration of where the burden of proof rests. Regulations and authoritative decisions aplenty and the debate still garners some traction, particularly when a claimant makes their accusations and waits for the company to prove otherwise.

Let's start with the basic proposition: claimants must prove their cases. This principle sits in the absence of any clear statutory provision as to the burden of proof. It was based on the general rule of evidence that he who asserts must prove.

The position was then authoritatively addressed in the combined appeal of Igen Ltd v Wong [2005] IRLR 258. The Court of Appeal in Igen approved the test (with a minor amendment) established in Barton v Investec Securities Ltd [2003] IRLR 332.

Plainly put, it is for the claimant who complains of discrimination to prove on the balance of probabilities facts from which the tribunal could conclude, in the absence of an adequate explanation, that the respondent has committed an act of discrimination against the claimant which is unlawful.

If the claimant does not prove such facts he or she will fail. It is important to bear in mind in deciding whether the claimant has proved such facts that it is unusual to find direct evidence of discrimination. Few employers would be prepared to admit such discrimination, even to themselves. In some cases the discrimination will not be an intention but merely based on assumption. In deciding whether the claimant has proved such facts, it is important to remember that the outcome at this stage of the analysis by the tribunal will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal.

At this stage, one does not have to reach a definitive determination that such facts would lead it to the conclusion that there was an act of unlawful discrimination. At this stage a tribunal is looking at the primary facts before it to see what inferences of secondary fact could be drawn from them. In considering what inferences or conclusions can be drawn from the primary facts, the tribunal must assume that there is no adequate explanation for those facts. These inferences can include, in appropriate cases, any inferences that it is just and equitable to draw. Likewise, the tribunal must decide whether any provision of any relevant code of practice is relevant. This means that inferences may also be drawn from any failure to comply with any relevant code of practice.

Where the claimant has proved facts from which conclusions could be drawn that the respondent has treated the claimant less favourably on the ground of a protected characteristics, then the burden of proof moves to the respondent. It is then for the respondent to prove that he did not commit, or as the case may be, is not to be treated as having committed, that act. To discharge that burden it is necessary for the respondent to prove, on the balance of probabilities, that the treatment was in no sense whatsoever on the grounds of that protected characteristic.

That requires a tribunal to assess not merely whether the respondent has proved an explanation for the facts from which such inferences can be drawn, but further that it is adequate to discharge the burden of proof on the balance of probabilities that the named protected characteristic was not a ground for the treatment in question. Since the facts necessary to prove an explanation would normally be in the possession of the respondent, a tribunal would normally expect cogent evidence to discharge that burden of proof.

Following the Igen decision in 2005, discrimination law had a serious face lift in the form of the Equality Act 2010. This adopted a unified approach to the burden of proof in the form of s. 136. This provides:

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

(2) If there are facts from which the court 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.

(4) The reference to a contravention of this Act includes a reference to a breach of an equality clause or rule.

(5) This section does not apply to proceedings for an offence under this Act. …”

Subsequent to the Equality Act 2010 coming into force on 1st October 2010, the Supreme Court was called upon to consider the burden of proof provisions, in the case of Hewage v Grampion Health Board [2012] IRLR 870. This expressly endorsed the two-stage test which had been laid down in Igen, namely: a) The first stage requires the complainant to prove facts from which the tribunal could, apart from the section, conclude in the absence of an adequate explanation that the respondent has committed, or is to be treated as having committed, the unlawful act of discrimination against the complainant; and b) The second stage, which only comes into effect if the complainant has proved those facts, requires the respondent to prove that he did not commit or is not to be treated as having committed the unlawful act, if the complaint is not to be upheld.

As at 2012, the position was clear. There was a prima facie burden on the Claimant to prove facts from which a discrimination could be inferred, after which the burden shifted to the Respondent to prove they had not contravened the act. Importantly, however, despite post-dating the Equality Act 2010, Hewage related to the burden of proof provisions under s.63A of the Sex Discrimination Act 1975 and s.54A of the Race Relations Act 1976.The matter has however, recently been revisited by the Court of Appeal in Royal Mail Group Ltd v Efobi [2019] EWCA Civ 18.

The EAT in Efobi has swam against the current and had decided that the requirement to draw inference from facts to prove the first stage of a discrimination claim did not place a burden on the claimant. Rather, it was neutral and the tribunal essentially had to draw inferences from any facts available to it, rather than the Claimant having to prove such facts or inference.

In Mr Efobi's case, the Court held that the tribunal was correct to find that Royal Mail had not directly discriminated against him during an internal recruitment process. The allegations of discrimination were mere assertions unsupported by evidence and Mr Efobi had not discharged the burden of proof on him to establish a prima facie case. The tribunal had not just focused on the evidence adduced by Mr Efobi. It had also considered Royal Mail's evidence about the suitability of his CV and evidence of the role of external recruiters. The court held that the onus was on the claimant to adduce the information supporting their case. Insofar as that information was held by their employer, the employee should request that it be provided voluntarily or obtain an order from the tribunal. Mr Efobi had done neither.

The Court of Appeal overturned the EAT decision and restored the principles set down by Igen and, latterly, Ayodele v Citylink Ltd and another [2017] EWCA Cviv 1913. Claimants do bear the initial burden of proof in discrimination cases. We are back at Igen, again.