Our understanding of the burden of proof may have altered in law, but the practical impact is debatable.
In Efobi v Royal Mail Group Limited the Employment Appeal Tribunal (Laing J) has considered the burden of proof provisions contained within s.136 Equality Act 2010.
The relevant paragraphs of the Judgment are from para 78 onwards, however, to summarise the reasoning:
- Section 136(2) does not put any burden on the Claimant.
- Rather, at the end of the hearing, the Tribunal must consider all of the evidence from all of the sources to decide whether there are facts from which the Tribunal could conclude in the absence of an explanation from the Respondent that discrimination has occurred. It is then for the alleged wrongdoer to demonstrate that the discrimination did not occur.
- Whilst the explanatory notes suggest a different approach, these are an aid to construction and not evidence of the will of Parliament.
- This produces a different understanding to that set out in Igen v Wong  ICR 931. However, that case considered the previous regime under the old discrimination statutes.
- This interpretation of s.136 means that this section goes further than that required by the Directive. However, that is permissible under the provisions of the Directive.
In short, we may have been doing it wrong for the last six or seven years.
Looking at the wording of s.136, it is possible to understand why this conclusion has been reached. The section does not say in explicit terms that the Claimant must prove facts. The wording of the section in the Equality Act is different to previous discrimination statutes.
As many will appreciate, the underlying policy reason behind the burden of proof provisions is the difficulty that can exist in proving that discrimination has occurred. It has been noted on infinite occasions that it is unlikely that a potential discriminator will admit the fact that discrimination has occurred. Discrimination does occur and it isn’t always visible or conscious.
However, it is possible for Employment Tribunals to get entangled in a horrible mess over the burden of proof provisions. There has been a trend in appellate case law to look at ‘the reason why’ as a way of simplifying things and to avoid potential potholes. In Hewage v Grampian Health Board  IRLR 870 the Supreme Court approved previous judicial comment by Underhill P in Martin v Devonshires Solicitors  ICR 352 and held that:
“…it is important not to make too much of the role of the burden of proof provisions. They will require careful attention where there is room for doubt as to the facts necessary to establish discrimination. But they have nothing to offer where the tribunal is in a position to make positive findings on the evidence one way or the other. That was the position that the tribunal found itself in in this case. It is regrettable that a final resolution of this case has been so long delayed by arguments about onus of proof which, on a fair reading of the judgment of the employment tribunal, were in the end of no real importance.” (para 32 per Lord Hope)
For what it is worth, my concern over this new interpretation isn’t over the end result but rather the process by which we get to the end result. In reality, very few cases turn on the burden of proof and a party that relies too heavily on this judgment may steer themselves away from the thought processes required to put their best case forward.
At the case management stage or at the start of a hearing, Employment Judges will want to understand the case. They will try and tease out the relevant points from the parties. Regardless of whether a party is represented, it is a useful exercise as it focuses minds and gives the parties an opportunity to identify the good points in their case to the Judge.
When undertaking this exercise it is not uncommon for a Judge to ask a party ‘how they intend to prove that’ or ask the basis for their contention. Again, this gives an insight into the Judges thought process and so a party would do well to pay attention to this as it is the Tribunal that they must persuade in order to be successful in their case.
The danger is that some will interpret this Judgment as permitting a more relaxed approach. I do not consider that was the intention behind the Judgment, but it is nonetheless a risk at the coalface.
Employment lawyers are used to the concept of a ‘neutral burden’ in respect of the issue of reasonableness in unfair dismissal law as contained within section 98(4) Employment Rights Act. However, that provision is inherently different in that parties are arguing over reasonableness of actions taken or not taken rather than ‘why’ something has happened.
The reality is that both parties must focus on establishing their respective contentions to the Tribunal and not get too distracted by the burden of proof. It will not serve a Claimant well if they believe that it is possible for them to attend Tribunal without having to prove anything and still succeed in their discrimination complaint, even if the case can be made out for that approach in law. I do not believe that overnight Tribunals are going to adopt a sea change in their view of what is discrimination and what isn’t. At the same time, whilst a Judge may no longer be able to use the phrasing of old in interrogating the parties cases it will still be a useful exercise to undertake and parties would do well to engage with it.