The Supreme Court has recently confirmed which party has the burden of proving discrimination under the Equality Act 2010, in the case of Efobi v Royal Mail Group Limited.


Prior to the Efobi case, it had been understood that, where claimants bring a claim for discrimination under the Equality Act 2010, they must first prove facts from which a tribunal could conclude that the respondent (usually the employer) could potentially have committed an unlawful act of discrimination. If the claimant can discharge this burden of proof, the burden then falls to the respondent to prove that the alleged act was not an act of unlawful discrimination. This is often referred to as the ‘shifting burden of proof’ and it is unique to discrimination claims.


Mr Ike Efobi is black Nigerian and a citizen of the Republic of Ireland. He has qualifications in Information Systems and Forensic Computing.

Mr Efobi was employed by Royal Mail as a postman. However, he wanted to be employed in the management/IT service area of the business, so that he could put his qualifications to better use. Mr Efobi therefore made over 30 applications for various management/IT roles.

None of Mr Efobi’s applications were successful. He therefore brought claims for direct and indirect discrimination, victimisation and harassment on the grounds of race against Royal Mail.

The Employment Tribunal rejected all Mr Efobi’s claims apart from his victimisation claim and one complaint of harassment. The Employment Tribunal rejected Mr Efobi’s direct discrimination claim on the basis that he had failed to discharge his burden of proving facts from which the Tribunal could conclude that discrimination might have taken place.

Mr Efobi appealed against the dismissal of his direct discrimination claim.

The Employment Appeal Tribunal (the “EAT”) allowed Mr Efobi’s appeal. It held that there was no burden on a claimant to prove anything in a discrimination case. Rather, the tribunal has to look at the facts of the case as a whole, and it is a matter for the respondent as to whether it chooses to adduce evidence to disprove the allegations made by the claimant.

However, the Court of Appeal overturned that decision, and the case was then heard by the Supreme Court.


The Supreme Court has now had the last word on this question of the ‘shifting burden of proof’ and has, unanimously, overturned the decision of the EAT.

The Supreme Court confirmed that the Equality Act 2010 imposes an initial burden on the claimant to prove facts from which a Tribunal could conclude that the respondent could potentially have committed an unlawful act of discrimination, thereby reinstating the status quo.

However, the Supreme Court commented that it is important not to read too much into this. It is likely only to be of significance that the claimant has an initial burden of proof where there is room for doubt as to the facts of a discrimination case – for example, where it is unclear whether the alleged acts of discrimination took place at all. Where the facts are not disputed, the key question will be whether the respondent can prove that discrimination has not in fact occurred.


This is a helpful decision for employers as it confirms that, before a claimant’s discrimination claim can get off the ground, they must first prove the facts of their case.

However, in many cases the facts of a discrimination claim are not disputed: for example, it is often agreed that a claimant was dismissed, or that inappropriate comments were made towards them, but it is disputed that these acts amount to discrimination.

In those circumstances, it will not be difficult for the claimant to discharge its initial burden of proof and the burden will then immediately fall to the respondent to prove that discrimination did not in fact take place.

This case therefore serves as a useful reminder to employers that, even where allegations appear to be entirely vexatious, it is for the employer to disprove discrimination, rather than for the claimant to prove it.

Note the Equality Act 2010 does not extend to Northern Ireland, but the decision of the Supreme Court provides welcome clarification that the burden of proof remains with claimant to prove, on balance of probabilities, facts from which a Tribunal can establish there has been an unlawful act of discrimination.

You can read the Supreme Court’s full Judgment here.

Contributor: John Smith

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at July 2021. Specific advice should be sought for specific cases. For more information see our terms & conditions.

Date published

29 July 2021

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