Royal Mail Group Ltd v Efobi

Section 136(2) of the Equality Act 2010 did not abolish the claimant’s initial burden of proof. The claimant must prove, on the balance of probabilities, facts from which discrimination could be inferred in the absence of another explanation. The tribunal must consider evidence from every source, including facts proved by the respondent, but must disregard the respondent’s explanation at that stage.

No adverse inference arises merely because the employer has not explained its treatment. Failure to call a decision-maker may support another adverse inference where the circumstances rationally justify it. This is a contextual assessment, not a rigid legal test. A difference in protected status and treatment, without more, establishes only a possibility of discrimination.

Mr Efobi, a black African employee of Royal Mail, unsuccessfully applied for more than 30 management and information-technology positions. The employment tribunal dismissed his direct race discrimination claim. The Employment Appeal Tribunal allowed his appeal and ordered a rehearing: [2018] ICR 359. It held that section 136(2) of the Equality Act 2010 imposed no initial burden on a claimant and that the tribunal had erred when assessing the evidence.

The Court of Appeal reversed that decision: [2019] EWCA Civ 18; [2019] ICR 750. Mr Efobi appealed to the Supreme Court. The issues were whether section 136(2) had changed the former two-stage burden of proof and whether an adverse inference should have been drawn because Royal Mail called no witness who had decided any of the applications.

1. The appeal was dismissed unanimously. Lord Leggatt delivered the judgment, with which Lord Hodge, Lord Briggs, Lady Arden and Lord Hamblen agreed. The employment tribunal had made no error of law when placing the initial burden of proving sufficient primary facts on the claimant.

2. Section 136 of the Equality Act 2010 preserved the two-stage process established under the predecessor provisions. At the first stage, the claimant must prove on the balance of probabilities facts from which the tribunal could infer a contravention in the absence of another explanation. If that burden is discharged, the respondent must prove that the protected characteristic played no part in the treatment. The changed wording, from facts which the complainant proved to facts which existed, clarified the existing law rather than changing it. The reasoning in Ayodele v Citylink Ltd [2017] EWCA Civ 1913 was approved.

3. The tribunal must consider all evidence when deciding which primary facts have been proved. This includes evidence adduced by the respondent which rebuts or places the claimant’s evidence in context. It must, however, disregard the respondent’s explanation for the treatment at the first stage. Otherwise the claimant would effectively have to disprove that explanation before the statutory burden shifted. The approaches in Laing v Manchester City Council [2006] ICR 1519 and Madarassy v Nomura International plc [2007] EWCA Civ 33 were approved.

4. Section 136(2) does not legally prohibit dismissal at the close of the claimant’s evidence where the discrimination claim is plainly hopeless. Hearing all the evidence will ordinarily be good practice, and it will seldom be safe to dispose of a claim at that stage. The tribunal is not nevertheless required to hear the respondent’s evidence merely in case it supplies a basis for the claimant’s allegation.

5. No adverse inference may be drawn at the first stage merely because the employer has supplied no explanation. Failure to call an actual decision-maker may nevertheless justify another adverse inference where ordinary rationality and the circumstances support it. Relevant matters include the witness’s availability, the evidence the witness could reasonably be expected to give, the other evidence and the significance of the point to the case as a whole. These considerations are not rigid legal rules.

   Here, the proposed inferences concerning the successful candidates’ ethnicity and the recruiters’ knowledge lacked a sufficient basis. Even if drawn, they would not establish more than differences in status and treatment and would therefore not shift the burden. The tribunal was entitled to find that no prima facie case of discrimination had been established.

1. United Kingdom Supreme Court: Dismissed Mr Efobi’s appeal and upheld the Court of Appeal’s restoration of the employment tribunal’s decision: [2021] UKSC 33.
2. Court of Appeal: Allowed Royal Mail’s appeal, held that section 136(2) retained an initial burden on the claimant, found no error in the tribunal’s assessment of the evidence and reversed the Employment Appeal Tribunal: [2019] EWCA Civ 18; [2019] ICR 750.
3. Employment Appeal Tribunal: Allowed Mr Efobi’s appeal, holding that section 136(2) imposed no initial burden on the claimant and that the evidence had been assessed incorrectly. It ordered a rehearing: [2018] ICR 359.
4. Employment tribunal: Upheld complaints of victimisation and one complaint of harassment, but dismissed the direct discrimination claim which became the subject of the appeals.