Supreme Court,  UKSC 33,  1 WLR 3863, 23 July 2021
Lord Hodge, DP, Lord Briggs, Lady Arden, Lords Hamblen and Leggatt
In this important case the Supreme Court ruled on the approach to s136 of the Equality Act 2010 which sets out the burden of proof in discrimination and harassment claims. The sole judgment was delivered by Lord Leggatt. The main question for the Court was whether the change in wording of the burden of proof provision from the pre-Equality Act 2010 (but post EU-inspired amendments to the legislative provisions transferring the burden of proof) reference to “the complainant [having proved] facts from which the tribunal could …conclude in the absence of an adequate explanation that the respondent” had discriminated to there being “facts from which the court could decide, in the absence of any other explanation, that a person” had discriminated (s136) had made any substantive difference to the test. The Court ruled that it did not. In addition, the Court was asked to consider whether the tribunal had been required to draw adverse inferences from the respondent’s failure to provide witness evidence from any of those responsible for the rejections of the claimant’s various applications. Again the Court ruled that it had not been so required.
The claimant complained of direct and indirect race discrimination, harassment and victimisation having made many unsuccessful applications for IT and management roles within the Royal Mail during four years of service as a postman.
harassment on grounds of race. One claim of harassment and the claim of victimisation succeeded and the claimant’s appeal against the rejection of his direct discrimination claim succeeded on appeal to the EAT. That court ruled, inter alia, that the employment tribunal had erred in its approach to s136(2) of the 2010 Act by imposing upon the claimant an initial burden of proof. The Court of Appeal followed its decision in Ayodele v Citylink Ltd  EWCA Civ 1913;  ICR 748 in upholding Royal Mail’s appeal and reversed the decision of the appeal tribunal. The claimant appealed on the basis that (1) the Court of Appeal had erred in its approach to s136(2) and (2) that the employment tribunal had erred in law in not drawing any adverse inference from the fact that Royal Mail adduced no evidence from anyone who actually dealt with any of the claimant’s applications.
Dealing first with the approach to s136(2) of the 2010 Act, Lord Legatt referred to the caselaw under the pre-Equality Act provisions and, in particular, to the decisions of the Court of Appeal in Igen Ltd v Wong  EWCA Civ 142;  ICR 931, the EAT in Laing v Manchester City Council  ICR 1519, approved by the Court of Appeal in Madarassy v Nomura International plc  EWCA Civ 33;  ICR 867 which was (with Igen v Wong) approved by the Supreme Court in Hewage v Grampian Health Board  UKSC 37;  ICR 1054. It was clear from these that a court or tribunal was not restricted in considering whether the burden of proof had passed to considering evidence put forward by the claimant, but could take into account any other available evidence, including any evidence from the respondent which tended to undermine the claimant’s case. As Elias J (as he then was) emphasised in Laing v Manchester City Council, referring to the decision of the Court of Appeal in Igen v Wong, it was important to distinguish between “facts” and “explanation”. As Lord Legatt summarised in the instant case:
 … In Igen Ltd v Wong the Court of Appeal had made it clear that, in considering at the first stage of the analysis what inferences or conclusions can be drawn from the primary facts, the tribunal must ignore any explanation for those facts given by the respondent and assume that there is no adequate explanation for them: see paras 21-22 and also para (6) of the guidance annexed to the judgment. That assumption is required by the statutory wording and is necessary to ensure that the claimant does not end up having to disprove an explanation advanced by the respondent at the first stage, which would defeat the object of the split burden of proof. In Laing, however, Elias J said (at para 60):
“… the obligation for the employer to provide an explanation once the prima facie case has been established, strongly suggests that he is expected to provide a reason for the treatment. An explanation is just that; the employer must explain. Why has he done what could be considered to be a racially discriminatory act? It is not the language one would expect to describe facts that he may have adduced to counter or put into context the evidence adduced by the claimant.” (Emphasis in original)
Thus, in Laing it was held that the employment tribunal had been entitled to rely at the first stage on evidence adduced by the employer that the manager whose conduct was complained of had indiscriminately treated all subordinates in an abrupt fashion, irrespective of their race (see para 57).
 In Madarassy the Court of Appeal endorsed this approach. Mummery LJ (with whose judgment Laws and Maurice Kay LJJ agreed) said at para 71:
“Section 63A(2) [of the Sex Discrimination Act 1975] does not expressly or impliedly prevent the tribunal at the first stage from hearing, accepting or drawing inferences from evidence adduced by the respondent disputing and rebutting the complainant’s evidence of discrimination. The respondent may adduce evidence at the first stage to show that the acts which are alleged to be discriminatory never happened; or that, if they did, they were not less favourable treatment of the complainant; or that the comparators chosen by the complainant or the situations with which comparisons are made are not truly like the complainant or the situation of the complainant; or that, even if there has been less favourable treatment of the complainant, it was not on the ground of her sex or pregnancy.”
I comment in passing that the last of the possibilities mentioned in this passage must refer to facts which indicate that, even if there has been less favourable treatment of the complainant, this was not on the ground of her sex or pregnancy. It should not be read as diluting the rule that evidence of the reason for any such less favourable treatment cannot be taken into account at the first stage.
Having set out the law as it stood prior to the implementation of the Equality Act 2010 Lord Legatt turned to consider whether the law had changed. He referred to Singh LJ’s observation in Ayodele §100 that it legal community had assumed for seven years after the enactment of the Act that s136 had made no change of substance, that assumption having been shared by the Explanatory Notes to both Bill and Act. He also cited the Employment Statutory Code of Practice §15.32 which was to similar effect. Referring to the claimant’s contention that these assumptions were flawed in view of the change in terminology, which placed no burden on the claimant, Lord Leggatt agreed that s136(2) “requires the employment tribunal to consider all the evidence from all sources, not just the claimant’s evidence, so as to decide whether or not ‘there are facts etc’”, but did not “accept that this has made a substantive change in the law. The reason is that this was already what the old provisions required as they had been interpreted by the courts”:
“ … As discussed at paras 20-23 above, it had been authoritatively decided that, although the language of the old provisions referred to the complainant having to prove facts and did not mention evidence from the respondent, the tribunal was not limited at the first stage to considering evidence adduced by the claimant; nor indeed was the tribunal limited when considering the respondent’s evidence to taking account of matters which assisted the claimant. The tribunal was also entitled to take into account evidence adduced by the respondent which went to rebut or undermine the claimant’s case”.
 The desirability of making this clear explains why the relevant wording has been changed” (agreeing with Singh LJ in Ayodele §103).
Lord Legatt went on to draw attention to the other change in terminology in s136(2), which replaced references to “an adequate explanation” or “a reasonable alternative explanation” to “any other explanation” The predecessor provisions had in his view (§28) been “apt to mislead in that they could have given the impression that the explanation had to be one which showed that the employer had acted for a reason which satisfied some objective standard of reasonableness or acceptability. It was, however, established that it did not matter if the employer had acted for an unfair or discreditable reason provided that the reason had nothing to do with the protected characteristic” (citing Glasgow City Council v Zafar  1 WLR 1659, 1663; Bahl v The Law Society  EWCA Civ 1070;  IRLR 799; Laing v Manchester City Council, §51.
 Unfortunately, as this case has shown, replacing “[w]here … the complainant proves facts” by “[i]f there are facts” created the possibility for a different misunderstanding that there is no longer any burden of proof on a claimant. There is nothing in the background to the 2010 Act which provides any support for a suggestion that this was or might have been a goal of the legislation: see Ayodele, paras 96-100. Indeed, the Explanatory Notes, quoted at para 24 above, positively suggest otherwise. Furthermore, there was no need to state in s 136(2) that the burden of proving facts from which the requisite inference can be drawn lies on the claimant because that is the effect of the general law. Any court or tribunal which is required to make findings of fact may face a situation in which it is unclear from the evidence whether something is a fact or not. To enable a court or tribunal to know how to proceed in such a situation, the law has developed rules about the burden and standard of proof. In civil cases (including employment disputes) the general rule is that a court or tribunal must find that something asserted by a party is a fact if, and only if, its truth is shown by sufficient evidence to be more probable than not.
 As counsel for the claimant properly accepted when questioned on this point, it follows from the application of this basic rule of evidence that an employment tribunal may only find that “there are facts” for the purpose of s 136(2) of the 2010 Act if the tribunal concludes that it is more likely than not that the relevant assertions are true. This means that the claimant has the burden of proving, on the balance of probabilities, those matters which he or she wishes the tribunal to find as facts from which the inference could properly be drawn (in the absence of any other explanation) that an unlawful act was committed. This is not the whole picture since, as discussed, along with those facts which the claimant proves, the tribunal must also take account of any facts proved by the respondent which would prevent the necessary inference from being drawn. But that does not alter the position that, under s 136(2) of the 2010 Act just as under the old provisions, the initial burden of proof is on the claimant to prove facts which are sufficient to shift the burden of proof to the respondent…
 I should also mention that the Employment Appeal Tribunal was in my view wrong to suggest that s 136(2) has changed the law so as to prohibit a respondent from submitting at the conclusion of the claimant’s evidence that there is no case to answer. It is certainly true that, as noted earlier, employment tribunals have long been encouraged to hear all the evidence in the case before reaching any conclusions and that to do so is good practice. As mentioned at para 21 above, it was also clear that, in order to discharge the burden of proof on the claimant under the old provisions, a claimant could rely on evidence from the respondent – for example, answers elicited in cross-examining the respondent’s witnesses – which assisted his or her case. There is, however, nothing in s 136(2), any more than there was in the old provisions, which prohibits the tribunal as a matter of law from dismissing the claim after hearing the evidence adduced by the claimant if it is clear at that point that the claim is entirely hopeless. If it is plain from the evidence adduced by the claimant that there is simply no basis for alleging discrimination, the tribunal is not legally obliged to hear evidence from the respondent just in case the respondent comes to the claimant’s rescue and makes a case against itself. Nor can I see that the use of the word “facts” rather than “evidence” in s 136(2) – the same word as was used in the old provisions – carries such an implication. It will seldom be safe to conclude that there are no facts from which the tribunal could decide that the test in s 136(2) is satisfied until the end of hearing. But there is nothing in s 136(2) which excludes that possibility as a matter of law…
 Before leaving this issue, it is worth repeating Lord Hope’s reminder in Hewage v Grampian Health Board that it is important not to make too much of the role of the burden of proof provisions. As he said at para 32:
“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.”
Lord Legatt went on to consider whether the claim that the tribunal had erred in failing to draw an adverse inference from the failure of the Royal Mail to adduce evidence from anyone who had been responsible for rejecting any of the claimant’s job applications, choosing instead to rely on managers who were familiar with the recruitment processes and how, in general terms, appointments were made. The Court of Appeal (per Elias LJ) had ruled that no such inference could be drawn at the first stage (i.e. in determining whether a prima facie case had been established), though the failure to call the actual decision-makers might jeopardise the employer’s ability to provide an explanation at stage 2. Lord Legatt agreed with this approach to the extent that it concerned the impermissibility of drawing an inference at stage 1 from the employer’s failure to provide an explanation, and described as “mistaken” §§21-22 of Igen Ltd v Wong to the extent that they could be read as suggesting otherwise. He went on to caution, however, that: “It does not follow, however, that no adverse inference of any kind can ever be drawn at the first stage from the fact that the employer has failed to call the actual decision-makers. It is quite possible that, in particular circumstances, one or more adverse inferences could properly be drawn from that fact” (40).
Lord Legatt warned against too readily treating as a question of law whether an adverse inference may be drawn from the absence of a witness, referring at §41 to the “risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules”.
Claimant: Charles Ciumei QC and Benedict Tompkins, instructed by Advocate
Respondent: David Reade QC, David Flood, Georgina Leadbetter, Instructed by Weightmans LLP (Liverpool)
post modified 15 January 2022