The Supreme Court finds no change in the burden of proof in discrimination claims in Royal Mail Group Ltd v Efobi

The Supreme Court has unanimously dismissed the appeal in Royal Mail Group Ltd v Efobi [2021] UKSC 33, upholding the initial decision of the employment tribunal and finding that there has been no substantive change in the law for establishing the burden of proof in a discrimination claim.

Royal Mail Group Ltd (Respondent) v Efobi (Appellant) [2021] UKSC 33

Background

Mr Efobi is a Republic of Ireland citizen who was born in Nigeria and identifies as black African Nigerian. Between 5 October 2011 and 27 August 2013 he was employed as a postman by Angard Staffing Solutions Ltd, which provides staffing services to the respondent in this case, Royal Mail Group Ltd (‘Royal Mail’). From 27 August 2013 onwards, Mr Efobi was employed directly by Royal Mail.

Mr Efobi subsequently instigated proceedings against Royal Mail in the employment tribunal (ET) alleging indirect and direct discrimination in relation to his job applications and harassment on grounds of race. His claim was later amended to include a claim for victimisation suffered as a result of bringing his claim in the ET.

The ET upheld the complaint of victimisation, but dismissed the other claims, and Mr Efobi appealed to the Employment Appeal Tribunal (EAT). The EAT allowed the appeal and ordered that the claim be remitted for rehearing on the grounds that (i) the ET had wrongly interpreted section 136(2) of the Equality Act 2010 as imposing an initial burden of proof on the claimant, and (ii) that the ET had in any event erred in its assessment of the evidence

Royal Mail appealed the decision to the Court of Appeal, however in the interim, the EAT’s decision on the interpretation of section 136(2) of the Equality Act 2010 (EqA 2010) was overruled by a decision in Ayodele v Citylink Ltd [2017] EWCA Civ 1913. The Court of Appeal was therefore bound by the decision to allow Royal Mail’s appeal and held that the ET had not made an error in its analysis of the evidence. The decision of the EAT was overturned but permission to appeal to the Supreme Court was granted.

The decision

The appeal was unanimously dismissed by the Supreme Court, with Lord Leggatt giving the judgment.

The burden of proof

The first question before the Supreme Court was whether the change between the Race Relations Act 1976 (RRA 1976) and the EqA 2010 in the wording for the two-stage test in discrimination cases removed the burden of proof from the claimant at the first stage of the test. Mr Efobi argued that the change in wording from ‘where…the complainant proves facts’ to ‘if there are facts from which the court could decide’ required the court to consider all evidence placed before it from a neutral standpoint.

The Court did not agree and held that there had been no substantive change in the law between the two Acts. Further, the Court held that as a court or tribunal may only find fact if it is admitted or proven by evidence to be more likely than not, the burden could not shift to the employer to explain the reasons for the treatment suffered by the claimant unless the claimant is able to convince the court, on the balance of probabilities that in the absence of any other explanation, an unlawful act of discrimination has occurred.

Adverse inferences

The second question posed to the court was whether it ought to draw adverse inferences from the fact that Royal Mail did not call as witnesses any of the individuals who had dealt with Mr Efobi’s applications in the past. Mr Efobi argued that (i) that the successful candidates were of a different race or ethnicity from him, and (ii) that the recruiters who rejected his applications (in all but two cases on paper without short-listing him for an interview) were aware of his race when they did so.

In making its decision, the Court emphasised that tribunals were free to draw, or decline to draw what inferences they may using their common sense. The Court found that there was nothing to suggest that the ET had precluded drawing adverse inferences from the fact that Royal Mail failed to call any of the actual decision makers as witnesses. It appeared to the Court that the ET simply had not drawn any adverse inferences from that fact. In any event, the Court held that even if the ET had drawn adverse inferences, such a conclusion would not without more have been sufficient for it to conclude that in the absence of any other explanation, Mr Efobi had suffered discrimination.

Issue Date: 23 July 2021

Issuing Department; Supreme Court

Jurisdiction: England; Northern Ireland; Scotland; Wales

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