Royal Mail Group Ltd v Efobi

In a direct discrimination claim under the Equality Act 2010, the claimant must first establish facts from which a tribunal could conclude, in the absence of any other explanation, that discrimination occurred. The employer’s explanation for the treatment is considered at the second stage only if that initial burden is discharged. The tribunal may consider all relevant evidence at the first stage, but cannot draw an adverse inference merely because the employer did not provide information or call the actual decision-makers. Bare differences in protected status and treatment are insufficient without evidence supporting a proper comparator and a link to the protected characteristic. Where the initial burden is not discharged, the employer need not provide a further explanation.

A black Nigerian employee applied unsuccessfully for numerous management and information-technology posts with Royal Mail Group. The Employment Tribunal rejected his direct race-discrimination claims, finding that he had not proved facts from which discrimination could be inferred and that there were sound non-discriminatory reasons for the recruitment outcomes.

The Employment Appeal Tribunal allowed his appeal and remitted the direct-discrimination issue to a fresh tribunal. It held, among other things, that the Employment Tribunal had applied the burden of proof incorrectly and had not adequately assessed the evidence. Royal Mail Group appealed. The central issues were whether the initial burden under section 136 of the Equality Act 2010 had been discharged and whether adverse inferences could be drawn from the employer’s failure to call the relevant decision-makers.

1. Appeal allowed. The Employment Tribunal was entitled to find that the claimant had not discharged the first-stage burden under section 136. The Employment Appeal Tribunal’s contrary construction of that provision could not stand in view of Ayodele v Citylink Ltd [2018] ICR 748, which held that the earlier authorities on the burden of proof remained applicable.
2. The statutory test involves two stages. First, the claimant must establish facts from which the tribunal could conclude, on the balance of probabilities and in the absence of any other explanation, that discrimination occurred. At that stage the tribunal may consider all relevant evidence, including evidence from the employer, but must leave the employer’s explanation for the treatment out of account. If the burden is discharged, the employer must prove that the treatment was not because of the protected characteristic.
3. The claimant’s evidence did not establish a prima facie case. He had not supplied evidence about the qualifications or characteristics of the candidates appointed, so the tribunal could not identify an appropriate comparator. His applications were also rejected by external recruiters in circumstances where discrimination was not seriously alleged; his CVs were generic and insufficiently focused on the posts; other candidates had more relevant experience; and he was an unconvincing witness on this part of the case. The combination of a difference in race and a difference in treatment was only a possibility, not a sufficient factual basis for an inference of discrimination.
4. The employer’s failure to call the actual decision-makers could not justify an adverse inference at the first stage. The claimant bore the burden of adducing the information supporting his case, and tribunals are not exercising an inquisitorial function. If the first-stage burden had been discharged, the reason would ordinarily have to be that of the actual decision-maker, but other evidence, including contemporaneous notes or managerial discussions, might suffice where calling that person was impossible or unnecessary.
5. The Employment Tribunal was not required to analyse each application separately at the first stage because the claimant had raised no materially different considerations for particular posts. The finding of no direct discrimination in relation to the relevant recruitment decisions was restored.

• Court of Appeal (Civil Division): Royal Mail Group’s appeal allowed. The Employment Tribunal’s finding of no direct discrimination was restored.
• Employment Appeal Tribunal: Appeal from the Employment Tribunal allowed and the direct-discrimination issue remitted to a fresh tribunal.
• Employment Tribunal: Direct race-discrimination claims concerning the recruitment applications rejected.