Efobi v Royal Mail Group Ltd

Section 136 of the Equality Act 2010 does not impose an initial burden on a claimant to prove facts from which discrimination could be inferred. The tribunal must consider all the evidence at the end of the hearing. If the evidence establishes facts from which it could decide, without another explanation, that discrimination occurred, the statutory consequence follows unless the respondent shows that it did not contravene the provision.

A tribunal may draw adverse inferences from a respondent’s failure to produce evidence within its knowledge, including evidence from relevant decision-makers. It must analyse separate allegations and identify the state of mind of the individuals responsible for the impugned decisions. A general explanation may not substitute for that analysis.

The claimant, a black African born in Nigeria, worked for the respondent and made numerous unsuccessful applications for IT-related posts. The Employment Tribunal dismissed his direct discrimination claims concerning those applications, although it upheld separate claims of harassment and victimisation.

The claimant appealed. He argued that the tribunal had misunderstood the statutory burden of proof, failed to draw appropriate inferences from missing evidence, treated the applications collectively, and failed to analyse the evidence concerning the individual decision-makers. The central issue was whether the tribunal had applied section 136 of the Equality Act 2010 correctly and had safely assessed the evidence.

1. Appeal allowed. The Employment Tribunal had materially misdirected itself about section 136 of the Equality Act 2010. Section 136(2) does not place an initial burden on the claimant. The tribunal must consider all the evidence, from all sources, at the end of the hearing. The reference to facts, rather than merely evidence, reinforces that conclusion.
2. If there are facts from which the tribunal could decide, in the absence of another explanation, that discrimination occurred, section 136(2) is engaged. The respondent must then show that it did not contravene the relevant provision. The tribunal has no discretion to disregard the statutory consequence once it has found the necessary facts.
3. A respondent that fails, without adequate explanation, to adduce evidence within its knowledge risks adverse inferences. Such inferences may concern matters other than the ultimate inference of discrimination, including the race or national origins of successful candidates. The effect of a witness’s absence must be assessed in accordance with the principles discussed in Wisniewski v Central Manchester Health Authority [1998] PIQR P324, including any explanation for the absence.
4. The tribunal’s reasoning was unsafe for additional reasons. It inaccurately stated that there was no evidence about the race of successful candidates, assumed that all relevant decision-makers had left the respondent’s employment, and failed to consider each application separately. In a discrimination claim the tribunal must identify the relevant decision-maker and consider that person’s state of mind. The protected characteristic need not be the sole reason, provided it was a legally significant influence.
5. The EAT could not determine whether section 136(2) was satisfied or substitute its own view of the facts. The direct discrimination claims concerning the rejected applications were remitted to a differently constituted Employment Tribunal. Specified factual findings were preserved, and the new tribunal was to decide whether any of the claims succeeded.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal’s dismissal of the direct discrimination claims concerning the claimant’s job applications.
• Employment Tribunal: decision sent to the parties on 24 March 2016. The tribunal dismissed those direct discrimination claims but upheld separate claims of harassment and victimisation.