The claimant was from Nigeria and identified as Black African. He was employed by the respondent as a postman. The claimant undertook a number of courses leading to qualifications (including postgraduate) in computing. As a result of the qualifications, he applied for 30 internal posts in the IT and Management areas. He was unsuccessful in applying for these roles. As a result, he brought a claim for direct and indirect discrimination on the basis of race due to his failure in the application process.

It was found at the initial tribunal hearing that the claimant had failed to demonstrate discrimination, either direct or indirect. The EAT, however, held that there was an error in the burden of proof suggesting that Section 136 of the Equality Act 2010 had shifted it to the respondent on an initial basis. The Court of Appeal reinstated the decision of the first instance Tribunal and the claimant appealed to the Supreme Court.

The Supreme Court examined the wording of the legislation to determine exactly where the burden of proof lies in discrimination claims. The issue was that the antecedent Race Relations Act 1976 stated ‘where the complainant proves facts’ whereas the Equality Act stated ‘if there are facts’. The argument was that the change in wording suggested that the burden was not expressly on the claimant any longer.

In examining the wording of the Equality Act 2010 the Supreme Court did outline that the legal sphere had continued to work on the basis that there was no substantive change. Indeed, there was never any suggestion in the debates prior to the Equality Act 2010 that it was designed to change the way in which the burden of proof operates in discrimination claims. The Supreme Court did state that it could have caused some confusion but there had been no real change to the way in which the burden of proof operates.

In explaining the burden of proof, it was held that the Tribunal must consider evidence from all sources rather than just the claimant’s evidence. This did not remove the burden from the claimant but merely allowed for a more rounded approach to be taken by the Tribunal. Indeed, even with the antecedent legislation such an approach was allowed. Accordingly, the claimant’s appeal was dismissed.

Practical Lessons

This is an important case in the interpretation of the Equality Act 2010.  There is a very subtle change which omits the express mention of the complainant having to prove facts.  This leads to the suggestion that the burden may not have to be discharged by the claimant at all.  However, the Supreme Court has made it very clear that there has been no substantive change.  Therefore, it will generally be for the claimant to prove that there has been discrimination before it will shift to the respondent.  In doing so though the Tribunal must consider all of the evidence rather than examining the claimant’s evidence in a vacuum.  It must be remembered that the Equality Act 2010 has no application in Northern Ireland so it is unlikely that the Supreme Court’s judgment would have to be fully implemented in the Tribunal.  However, it may provide some steer on how to determine whether the complainant has proven certain facts in discrimination claims.
https://www.supremecourt.uk/cases/uksc-2019-0068.html