How Does the Employment Appeal Tribunal Analyse Burden of Proof Errors in Discrimination Appeals?

Errors in the application of the burden of proof in discrimination cases are among the most common and most consequential grounds of appeal to the Employment Appeal Tribunal. The burden of proof in discrimination claims is governed by section 136 of the Equality Act 2010, which provides for a two-stage test. At the first stage, the claimant must prove facts from which the tribunal could conclude, in the absence of any other explanation, that discrimination occurred. At the second stage, if such facts are proved, the burden shifts to the respondent to show that discrimination was not the reason for the treatment.

The Employment Appeal Tribunal analyses burden of proof errors by examining whether the Employment Tribunal applied the two-stage test correctly, whether it correctly identified what the claimant needed to establish at the first stage, and whether it correctly assessed the respondent's explanation at the second stage. Errors at either stage constitute errors of law. The framework for analysis derives from the leading authorities of Igen Ltd v Wong [2005] ICR 931, Madarassy v Nomura International plc [2007] ICR 867, and Efobi v Royal Mail Group Ltd [2021] ICR 1263.

Legal Framework

Section 136 of the Equality Act 2010

Section 136 provides that if there are facts from which the tribunal could decide, in the absence of any other explanation, that a person contravened a provision of the Act, the tribunal must hold that the contravention occurred unless the respondent shows that the contravention did not occur. This two-stage structure is fundamental to discrimination adjudication.

The provision applies to all forms of discrimination, harassment, and victimisation under the Equality Act 2010. The Employment Tribunal must apply it whenever the burden of proof is in issue, which is the case in the majority of contested discrimination claims.

The First Stage: Establishing a Prima Facie Case

At the first stage, the claimant must establish facts from which the tribunal could conclude that discrimination occurred. The leading authority on what this requires is Madarassy v Nomura International plc [2007] ICR 867, in which the Court of Appeal held that the claimant must prove something more than a difference in treatment and a difference in protected characteristic. There must be something more from which the tribunal could infer that the treatment was because of the protected characteristic.

The 'something more' can take many forms: the use of stereotypical language, inconsistency in treatment, the absence of a credible explanation, the proximity of the treatment to the claimant's disclosure of a protected characteristic, or any other circumstance from which an inference of discrimination could be drawn. The Employment Tribunal must assess whether, looking at the totality of the evidence, the claimant has established facts from which discrimination could be inferred.

The Second Stage: The Respondent's Explanation

If the claimant establishes a prima facie case, the burden shifts to the respondent to prove that the treatment was not because of the protected characteristic. The respondent must provide a cogent, non-discriminatory explanation. If the respondent fails to discharge this burden, the tribunal must find that discrimination occurred.

The Employment Appeal Tribunal has emphasised that the respondent's burden at the second stage is to prove, on the balance of probabilities, that discrimination was not the reason. It is not sufficient for the respondent simply to provide an alternative explanation; the explanation must be adequate and credible. The tribunal must assess whether it is satisfied that the explanation is genuine and non-discriminatory.

The Efobi Clarification

In Efobi v Royal Mail Group Ltd [2021] ICR 1263, the Supreme Court clarified that section 136 does not prevent the tribunal from hearing all the evidence from both parties before deciding whether the claimant has established a prima facie case at the first stage. The tribunal is not required to artificially separate the evidence into two stages. However, the two-stage analytical framework must still be applied in the tribunal's reasoning.

Efobi resolved an ambiguity about whether the tribunal could consider the respondent's evidence at the first stage. The answer is that it can, but the analytical structure of section 136 must still be respected. The tribunal must still ask, having considered all the evidence, whether there are facts from which discrimination could be inferred.

Common Errors and Misconceptions

The most common error made by Employment Tribunals in applying the burden of proof is to require the claimant to prove discrimination throughout, without ever shifting the burden to the respondent. Where the claimant has established the 'something more' required by Madarassy, the burden must shift. A failure to recognise the shift is an error of law.

A related error is to set the threshold for the first stage too high. Some tribunals require the claimant to establish a strong prima facie case before shifting the burden, or require direct evidence of discrimination. The test is whether there are facts from which discrimination could be inferred, not whether discrimination has been proved.

At the second stage, a common error is to accept the respondent's explanation at face value without scrutinising it. The tribunal must assess whether the explanation is genuine and adequate. An explanation that is inconsistent with the evidence, implausible, or shifting may not discharge the burden.

Another frequent error is to conflate the reason for the treatment with the explanation for the treatment. The tribunal must consider whether the protected characteristic was the reason for the less favourable treatment, not merely whether the respondent can point to some reason for its action. A respondent may have had a reason for its conduct that was also influenced, consciously or unconsciously, by the claimant's protected characteristic.

Some tribunals incorrectly treat the burden of proof as a mere technicality or state that it is unnecessary to apply the two-stage test because the tribunal has heard all the evidence. While Efobi permits the tribunal to hear all the evidence, it does not dispense with the analytical framework. The two stages must still be applied in the reasoning.

Practical Application

Burden of proof errors are among the most fertile grounds for appeal in discrimination cases. When reviewing the Employment Tribunal's written reasons, the analysis should focus on whether the tribunal: (i) identified the correct two-stage test; (ii) assessed what facts the claimant established at the first stage; (iii) determined whether those facts were sufficient to shift the burden; and (iv) if so, assessed the respondent's explanation at the second stage.

In practice, errors commonly arise where the tribunal collapses the two stages into one, by considering the respondent's explanation as part of the assessment of whether the claimant has established a prima facie case, in a manner that effectively prevents the burden from ever shifting. This is an error because it deprives the claimant of the statutory protection that the burden of proof provision is designed to afford.

Grounds of appeal based on burden of proof errors should identify the specific stage at which the error occurred, reference the relevant authority, and explain how the error affected the outcome. These grounds are well suited to the sift stage because the error can be identified by reference to the tribunal's own reasoning.

The intersection between the burden of proof and the tribunal's approach to circumstantial evidence is also a common source of appeal. Discrimination is rarely overt, and the claimant will often rely on inferences drawn from circumstantial evidence. If the tribunal fails to draw available inferences, or requires direct evidence of discrimination before shifting the burden, the analysis is legally flawed.

Process and Timing

The 42-day time limit applies. Grounds based on burden of proof errors should set out the two-stage test by reference to section 136 and the leading authorities, identify the stage at which the error occurred, and explain the materiality of the error. These grounds are among the most effective in discrimination appeals because they engage a structured legal framework that the sift judge can readily assess.

If the appeal succeeds, the case is typically remitted to the Employment Tribunal for a rehearing applying the correct burden of proof analysis. In some cases, the Employment Appeal Tribunal may determine that the only reasonable conclusion, applying the correct framework, is that discrimination did or did not occur, and may dispose of the case without remission.

When to Seek Specialist Counsel

The burden of proof in discrimination cases is a technically demanding area where the case law has evolved significantly. A specialist in Employment Appeal Tribunal work will be familiar with the leading authorities and their application, and will be able to identify burden of proof errors that may not be apparent to a non-specialist. This is an area where specialist input can materially improve the prospects of a successful appeal.

A specialist can also advise on whether the error was material — that is, whether the correct application of the burden of proof would or might have led to a different outcome. This assessment is important because not every burden of proof error is determinative.

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