Applying for the same promotion thirty times and being turned down every time isn’t proof of race discrimination on its own.
“Supreme Court upheld dismissal of the discrimination claim, confirming the two-stage burden of proofIn a legal claim, whose job it is to prove what. In a discrimination case, once you point to facts that, left unexplained, would suggest discrimination, the burden shifts to your employer to show the ... test.”
Repeated unexplained rejections aren't proof of race discrimination by themselves. You need facts that specifically point towards your protected characteristicOne of the nine characteristics listed in the Equality Act 2010 against which it is unlawful to discriminate. They include age, disability, race, sex, religion or belief, and sexual orientation. If yo... as the reason, before the burden shifts to your employer to explain itself.
- Keep a record of every application, rejection, and the reasons given at the time, even if those reasons seem to shift or don't add up.
- Try to find a genuine comparatorA comparator is someone in a similar situation to you but without your protected characteristic (for example, a different race, sex, or disability status), used to judge whether you were treated worse..., someone outside your protected characteristic, in a similar position, who was treated differently.
- Get advice early if you think a pattern is emerging. Building a strong first-stage case is often what decides a discrimination claim.
The situation
An employee applied for over thirty managerial and technical roles at his employer over roughly three years, and was rejected every time despite holding relevant qualifications. He brought a tribunal claim alleging the rejections amounted to race discrimination, harassmentUnwanted behaviour related to a protected characteristic, such as your sex, race, disability, age or religion, that violates your dignity or creates an intimidating, hostile or humiliating environment... and victimisationBeing treated badly because you've raised a complaint, supported someone else's complaint, or done something else the law protects, such as raising a grievance or whistleblowing. It is unlawful in its.... None of the individual managers who had actually made the rejection decisions gave evidence at the tribunal hearing.
What the court found
The Supreme Court upheld the tribunal's original decision to dismiss the claim. Discrimination claims under the Equality Act 2010The main piece of legislation protecting employees from discrimination at work. It covers nine protected characteristics including age, disability, sex, race, and religion, and makes it unlawful for a... still work in two stages. First, you need to point to facts from which a tribunal could conclude, without any explanation from your employer, that discrimination might have happened. Only once you clear that first hurdle does the burden shift to your employer to prove it didn't.
A change in the exact wording of section 136 of the Equality Act had led to an argument that this first-stage burden had been removed entirely, so that any unexplained rejection could be enough on its own. The Supreme Court rejected that. The wording change didn't alter the substance of the test. And the fact that the actual decision-makers didn't give evidence wasn't, on its own, enough to get him over that first hurdle either. A tribunal is entitled to weigh that gap in the evidence, but it isn't required to treat it as proof of discrimination.
Royal Mail Group Ltd v Efobi. Case UKSC 2019/0231. Supreme Court. 23 July 2021.