On 23 July the Supreme Court ruled in favour of Royal Mail and dismissed the case due to lack of evidence.
The ruling has not changed law, but it has highlighted to employers a potential defence against discrimination claims.
Without a witness to discriminatory comments, or solid evidence such as emails, cases of employer discrimination are much harder to prove.
Suzanne Staunton, employment partner at JMW Solicitors, told HR magazine: "A mere difference in treatment and having a protected characteristic is not enough to shift the burden onto the respondent, in this case the employer, without something more.
"Therefore, if there is no or little evidence from any source, whether that be from the claimant or respondent (which would allow a tribunal to conclude on balance that there could be unlawful discrimination) then that is the end of the case."
She added that the case is also a useful reminder for HR teams and recruiters to take notes during the interview process.
"Noting down cogent reasons why they are advancing some candidates and why they are not progressing with others may come in handy at a later date," she said.
The claimant in the Royal Mail case, Efobi, had qualifications in computing and although he applied for over 30 roles, he was not hired for any.
Efobi claimed he was racially discriminated against as he was born in Nigeria and identifies as a black African and Nigerian.
He also made allegations of racial harassment and victimisation.
The first employment tribunal dismissed Efobi’s claims and said he had provided no evidence of misconducted or racial discrimination.
An appeal to the Employment Appeal Tribunal was then made on the grounds that the first tribunal had wrongly interpreted section 136(2) of the Equality Act 2010, which deals with the burden of proof in discrimination cases.
The Court of Appeal reversed the initial decision, granting Efobi permission to appeal to the Supreme Court.
The Supreme Court unanimously dismissed the appeal reaffirming that evidence of discrimination was essential.
Jeremy Coy, senior associate in the employment team at Russell-Cooke, said the Supreme Court’s decision will come as a relief for employers.
He said: “Efobi had alleged that the law does not require him to provide facts that would show, in the absence of any other explanation, that discrimination occurred.
“The Supreme Court disagreed and stated that facts tending to show discrimination will need to be provided for Employment Tribunals to consider whether such discrimination had occurred.
“This decision reinstates the initial understanding of the burden of proof in discrimination cases.
“A claimant must first show facts that would tend to show discrimination had occurred and it will then be for an employer to provide evidence to show otherwise,” he said.
