Royal Mail Group Ltd v Efobi

The Supreme Court considered whether the change in wording from the predecessor burden of proof provisions to section 136(2) of the Equality Act 2010 altered the substantive law on the burden of proof in discrimination claims. The court held that it did not: section 136(2) must be read consistently with the established two-stage approach under the old provisions (eg section 54A(2) Race Relations Act 1976) whereby the claimant must prove, on the balance of probabilities, facts from which a tribunal could conclude, in the absence of any other explanation, that discrimination occurred and only then does the burden shift to the respondent to show there was no contravention. The court confirmed that tribunals may take account at the first stage of evidence from the respondent which is relevant to whether a prima facie case exists, but must ignore any putative explanation for the employer's conduct when deciding whether the prima facie case is made. The court also rejected the submission that tribunals are precluded as a matter of law from drawing adverse inferences from an employer's failure to call actual decision-makers, holding instead that drawing such inferences is a matter of ordinary rationality and fact-specific judgment and that on the facts no reasonable tribunal would have been compelled to draw the adverse inferences urged by the claimant.

Background and parties:

• The claimant, Mr Efobi, a black African and Nigerian-born postman, applied on over 30 occasions between 2011 and 2015 for management or IT roles with Royal Mail without success.
• He brought proceedings in the employment tribunal alleging direct and indirect race discrimination, harassment and later victimisation. The tribunal upheld victimisation and one harassment complaint but dismissed the discrimination claims.

Procedural history:

• The claimant appealed the dismissal of the direct discrimination claim to the Employment Appeal Tribunal which allowed the appeal on two grounds and remitted the claim for rehearing: (i) that the employment tribunal had wrongly interpreted section 136(2) of the Equality Act 2010 as imposing an initial evidential burden on the claimant and (ii) errors of law in assessing the evidence: reported at [2018] ICR 359.
• On further appeal the Court of Appeal ([2019] EWCA Civ 18; [2019] ICR 750) reversed the Employment Appeal Tribunal, following its earlier decision in Ayodele v Citylink Ltd ([2017] EWCA Civ 1913; [2018] ICR 748), and reinstated the employment tribunal's decision.
• The case came to the Supreme Court on the claimant's appeal raising two issues: (i) the correct interpretation of section 136(2) of the Equality Act 2010 (the burden of proof issue) and (ii) whether the tribunal ought to have drawn adverse inferences from Royal Mail's failure to call the actual decision-makers (the adverse inference issue).

Issues framed by the court:

1. Whether the change in wording from the predecessor provisions (eg section 54A(2) Race Relations Act 1976) to section 136(2) of the Equality Act 2010 effected any substantive change to the burden of proof in discrimination claims.
2. Whether the tribunal was obliged, or plainly required, to draw adverse inferences from the employer's failure to call the actual decision-makers who rejected the claimant's applications.

Court's reasoning and holdings:

• The court analysed the established two-stage approach under the predecessor provisions and the case law (including Barton, Igen, Laing, Madarassy and Hewage) and concluded Parliament did not intend a substantive change when enacting section 136(2). The phrase "if there are facts" was intended to clarify that tribunals must consider all evidence from all sources when deciding whether there are facts from which an inference of discrimination can be drawn, not to eliminate the claimant's burden to prove primary facts on the balance of probabilities.
• The court explained that the general civil standard and rules on burden of proof continue to apply: the tribunal may only find that there "are facts" for section 136(2) if it is satisfied, on the balance of probabilities, that those facts are established.
• On adverse inferences, the court held that whether to draw an inference from the absence of a witness is a matter of ordinary rationality and fact-specific judgment; the tribunal was not precluded as a matter of law from drawing such an inference but, on the facts, it was not irrational for the tribunal to decline to draw the inferences the claimant urged.

Relief sought:

• (i) The claimant sought to overturn the Court of Appeal and reinstate the Employment Appeal Tribunal's order remitting the direct discrimination claim for rehearing.

Appeal dismissed. The Supreme Court held that the change of wording in section 136(2) of the Equality Act 2010 did not effect a substantive change to the law: the claimant still bears the initial burden of proving, on the balance of probabilities, facts from which, in the absence of any other explanation, a tribunal could conclude that discrimination occurred. Tribunals may consider relevant evidence from the respondent at the first stage but must ignore any explanation for the respondent's conduct at that stage. The court also held that drawing adverse inferences from an employer's failure to call decision-makers is a fact-specific exercise; on the facts of this case the tribunal was not required to draw the adverse inferences asserted by the claimant.

Employment Tribunal: liability decision (upheld victimisation and one harassment complaint; discrimination claims dismissed). Employment Appeal Tribunal: claimant's appeal allowed and claim remitted for rehearing ([2018] ICR 359). Court of Appeal: reversed the EAT and allowed Royal Mail's appeal ([2019] EWCA Civ 18; [2019] ICR 750), applying Ayodele v Citylink Ltd ([2017] EWCA Civ 1913; [2018] ICR 748). Supreme Court: appeal dismissed ([2021] UKSC 33).