Burden of Proof under the Equality Act 2010 and Adverse Inferences: Efobi v Royal Mail Group Limited (Judgment handed down on 10 August 2017).
Prior to the advent of the Equality Act 2010 the burden of proof under the earlier legislation was stated by the Court of Appeal in Igen v Wong  EWCA Civ 142. The first stage was that the Claimant had to prove facts from which the tribunal could conclude in the absence of an adequate explanation that the respondent has committed, or is treated as having committed, the unlawful act of discrimination. If that initial burden was established by the Claimant, the legislation then required the Respondent to show that unlawful discrimination had not occurred.
Section 136 of the Equality Act 2010 provides:
“136 Burden of proof
(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.
It is of note that the explanatory notes referred to in the Preamble of the Act state that “…the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act…”
In Efobi v Royal Mail Group Ltd UKEAT/0203/16/DA, a race discrimination case under the Equality Act 2010, the EAT considered the interpretation of S136 after the tribunal at first instance applied Igen v Wong. The EAT held that section 136 does not put any burden on the Claimant and that it was explicit in not placing any burden on the Claimant. S136 requires the Tribunal to consider all the evidence, from all sources, at the end of the hearing so as to decide whether or not there are facts, from which in the absence of an explanation, it could conclude that there had been discrimination. This therefore means that S136 prohibits a submission of no case to answer at the close of the Claimant’s case because the Tribunal has to evaluate all of the evidence, including that of the Respondent, before considering whether there is sufficient evidence to require the Respondent to show that discrimination did not occur.
Laing DBE J acknowledged that this was not the way the Explanatory Notes to the Equality Act 2010 interpreted S136 and although they can be used to aid construction of the statute they cannot be treated as reflecting the will of Parliament, which is to be deduced from the language of the statue in question. It was further acknowledged that this was not the way that the burden of proof had been understood in cases starting with Igen v Wong but the statutory provisions under consideration in those cases were worded differently to the Equality Act 2010.
Efobi is also a salutary warning to Respondents that choose, without explanation, not to adduce evidence of matters in their own knowledge in that they run the risk that the Tribunal may draw an adverse inference when considering whether S136(2) has been satisfied. In Efobi there was very little evidence adduced before the Tribunal as to the race and national origins of the successful candidates and the Respondent had not called, as witnesses, any of the staff who made decisions in relation to Claimant’s application for promotion. Although not referred to as part of Laing J’s discussion, Lord Sumption’s Judgment in Prest v Petrodel Resources Ltd  UKSC 34 and Wisniewski v Central Manchester Health Authority CA  PIQR P324 were cited in argument.
In Wisniewski, a clinical negligence case in which the Senior House Officer on call did not give evidence, Brooke LJ derived the following principles in relation to inferences:
(1) In certain circumstances a court may be entitled to draw adverse inferences from the absence or silence of a witness who might be expected to have material evidence to give on an issue in an action.
(2) If a court is willing to draw such inferences they may go to strengthen the evidence adduced on that issue by the other party or to weaken the evidence, if any, adduced by the party who might reasonably have been expected to call the witness.
(3) There must, however, have been some evidence, however weak, adduced by the former on the matter in question before the court is entitled to draw the desired inference: in other words, there must be a case to answer on that issue.
(4) If the reason for the witness’s absence or silence satisfies the court then no such adverse inference may be drawn. If, on the other hand, there is some credible explanation given, even if it is not wholly satisfactory, the potentially detrimental effect of his/her absence or silence may be reduced or nullified.
Efobi has not only clarified that there is not a burden of proof on the Claimant as part of S136(2) but has also highlighted the need for Respondents to adduce evidence if they do not want to run the risk of an adverse inference being drawn as to why a witness has not been called or why disclosure of other evidence has not been provided. It should, however, be noted that before an inference on any particular issue can be drawn there must be some evidence before the court or tribunal on that issue. Accordingly, Efobi is a clear warning to Respondents who do not call alleged discriminators, in the absence of a good explanation, to give evidence.
Permission to appeal has been sought from the Court of Appeal and a Judicial Decision on the papers is currently awaited.