Royal Mail Group v Efobi

The Court of Appeal allowed Royal Mail's appeal against the Employment Appeal Tribunal's decision to remit the claimant's direct race discrimination claims to a fresh Employment Tribunal. The court held that the Employment Tribunal had applied the correct legal test under section 136 of the Equality Act 2010 (the two-stage burden of proof approach as explained in Igen and Madarassy and confirmed by Ayodele) and was entitled to conclude that the claimant had not discharged the first-stage burden to establish facts from which a tribunal could, in the absence of an adequate explanation, infer direct discrimination. Key factual grounds for that conclusion were the claimant's failure to identify appropriate comparators or to adduce evidence about successful candidates, the fact that many rejections were made by external recruiters for whom there was no suggestion of discrimination, and the tribunal's adverse assessment of the claimant's CVs and his credibility as a witness. The Court held that the Employment Tribunal's finding that no prima facie case was established was open to it on the evidence and restored the ET's decision dismissing the direct discrimination claims.

Background and parties. The claimant, a black Nigerian man employed by Royal Mail as an operational postman, applied for numerous management and IT posts and alleged direct race discrimination under the Equality Act 2010 when he was unsuccessful in many applications. He brought claims before an Employment Tribunal for both direct and indirect discrimination and for harassment and victimisation. The Employment Tribunal rejected the direct discrimination claims. The claimant appealed to the Employment Appeal Tribunal, which upheld the appeal on grounds including an analysis of the burden of proof and remitted the direct discrimination claims to a fresh Employment Tribunal; Royal Mail then appealed to the Court of Appeal.

Nature of the claim / relief sought. The claimant sought a declaration and remedies for direct race discrimination in respect of approximately 22 recruitment decisions (part of a larger set of applications). The EAT had remitted those claims for rehearing. Royal Mail sought to overturn that EAT decision.

Issues framed by the court.

• How section 136 of the Equality Act 2010 (burden of proof) should be applied and whether the Employment Tribunal erred in law.
• Whether, on the evidence, the claimant had discharged the first-stage burden to show facts from which discrimination could be inferred.
• Whether the EAT was right to remit the claims and to criticise the ET for not calling actual decision-makers or otherwise failing to scrutinise the employer's explanation.

Reasoning and decision. The Court of Appeal explained the two-stage approach derived from Igen and Madarassy and reaffirmed that Ayodele confirmed those authorities remain applicable to section 136. The court concluded the EAT was wrong to treat the different wording in section 136 as abolishing the claimant's first-stage burden. Even assuming the claimant bore that burden, the court held the Employment Tribunal had ample evidence to find it was not discharged: the claimant produced insufficient evidence about successful candidates (so appropriate comparators could not be identified), many rejections were made by external recruiters who were not shown to have discriminated, the claimant's CVs were generic and less focused than others', and the claimant was an unimpressive and at times unreliable witness. The Court also rejected the contention that adverse inferences should be drawn against the employer at the first stage for failing to call particular decision-makers, stressing that adverse inferences and failure-to-call principles do not displace the statutory allocation of the first-stage burden. The Court therefore allowed the appeal and restored the ET's finding that there was no direct discrimination in recruitment.

Procedural posture. Appeal from the Employment Appeal Tribunal (Elisabeth Laing J) to the Court of Appeal which allowed the appeal and restored the Employment Tribunal’s decision that there was no direct discrimination.

The Court of Appeal allowed the appellant's appeal. It held that the Employment Tribunal had correctly applied the two-stage burden of proof approach under section 136 Equality Act 2010 and was entitled to find that the claimant had not discharged the first-stage burden to establish facts from which discrimination could be inferred. Given the lack of evidence about comparators, the involvement of external recruiters who were not shown to be discriminatory, the claimant's inadequate CVs and adverse credibility findings, the ET's conclusion that there was no direct discrimination was open on the evidence and was accordingly restored.

Appeal to the Court of Appeal from the Employment Appeal Tribunal (Elisabeth Laing J), which had allowed an appeal from the Employment Tribunal and remitted the direct discrimination claims to a fresh Employment Tribunal. Neutral citation of the Court of Appeal judgment: [2019] EWCA Civ 18. (Employment Tribunal and EAT neutral citations not given in the judgment.)