Race Discrimination: Evidence & Inference after Royal Mail Group Limited v Efobi

The Court of Appeal has recently given judgment in Royal Mail Group Limited v Efobi [2019] EWCA Civ 18, Royal Mail’s appeal against the Employment Appeal Tribunal’s decision that, at first instance, a Tribunal had wrongly rejected Mr Efobi’s claim for direct race discrimination. The Court of Appeal’s decision has effectively restored the decision of the Tribunal that an employer’s failure to provide evidence, in a claim for direct discrimination, should not lead to an adverse inference about its practices unless the claimant has firstly discharged the burden upon them of showing a prima facie case of discrimination.

The Law

Section 13(1) of the Equality Act 2010 (EqA 2010) defines direct discrimination as being where “A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.” Race is, under EqA 2010, a protected characteristic and the claimant needs to be able to show an unfavourable comparison between the treatment they received and that received by an actual or “hypothetical” comparator (for example someone with the same qualifications but of a different race).

Section 136 of EqA 2010 deals with the burden of proof in such a claim:

(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person(A) [discriminated against another person (B)], the court must hold that the [discrimination] occurred.

(3) But subsection (2) does not apply if A shows that A did not [discriminate against B].

The key issue in Efobi was the interpretation of s.136 and what evidence the parties needed to produce to the Tribunal.

The Facts

Mr Efobi is a black Nigerian and citizen of Ireland. He has qualifications in IT and related areas and had been employed by Royal Mail since August 2013, initially as a postman but with ambitions to join an IT/managerial department. He applied for over 20 posts and having been unsuccessful in each application he alleged that he had been the victim of direct discrimination.

The claimant had represented himself and, no doubt due to a lack of advice, he had not sought disclosure from Royal Mail of documents or information relating to the race and qualifications of those applicants who had been offered jobs. Royal Mail had not offered this information and so, when hearing the claim, the Tribunal simply did not have enough evidence to establish whether those applicants were appropriate comparators to Mr Efobi (for instance whether they had similar qualifications or were the same race).

The Tribunal refused to draw, from the absence of evidence, an adverse inference about Royal Mail’s recruitment practices. Its conclusion was that Mr Efobi had not discharged the burden upon him of showing that there were facts from which the Tribunal could infer that Royal Mail had discriminated against him, and so there was no requirement on Royal Mail to produce evidence which gave a non-discriminatory explanation for Mr Efobi’s lack of promotion. There was a two-stage test with the initial burden resting on the claimant, but Mr Efobi had not met its first part. In reaching its conclusions, the Tribunal was in fact following guidance set down in a number of cases which pre-dated the EqA 2010.

Mr Efobi appealed to the EAT which determined that in fact the Tribunal had been wrong to impose a two-stage test and that the introduction of the EqA 2010 had changed the law, such that there was no longer any burden at all on a claimant to establish relevant facts pointing towards discrimination. Mr Efobi’s appeal was successful and the EAT’s decision represented a significant departure from the previously well-established “two-stage test” approach.

The Court of Appeal’s Decision

Royal Mail successfully appealed the EAT’s decision. In the Court of Appeal’s view, the two-stage test does still apply when considering a claim for discrimination and Parliament did not intend to depart from the pre-EqA 2010 principles regarding the approach to discrimination cases. Sir Patrick Elias stated (at paragraph 15) that:

“First, the burden is on the employee to establish facts from which a tribunal could conclude on the balance of probabilities, absent any explanation, that the alleged discrimination had occurred. At that stage the tribunal must leave out of account the employer’s explanation for the treatment. If that burden is discharged, the onus shifts to the employer to give an explanation for the alleged discriminatory treatment and to satisfy the tribunal that it was not tainted by [discrimination]. If he does not discharge that burden, the tribunal must find the case proved.”

In Mr Efobi’s case, the Tribunal had been entitled to conclude that he had failed to get over the first hurdle of establishing a prima facie case of discrimination. He had failed to provide any information about relevant comparators, neither could he show that his race was even known during some of the recruitment processes. The Court of Appeal agreed with the Tribunal’s conclusion that “there was no evidential basis for inferring that the reasons why his applications failed…was for race related reasons”.

Therefore, no adverse inference would be drawn from the fact that Royal Mail had not produced evidence to satisfy the second stage of the process as the burden of producing such evidence had in fact not shifted onto it.

Points of Interest

The point was made by the Court of Appeal (at paragraph 44 of its judgment) that it was for the claimant to produce evidence which supported his case and “It is not for the employer to do the work for the claimant and to provide such information as it thinks might advance his case”. Tribunals themselves must be careful not to do a litigant in person’s work for them and the Tribunal’s role is very much an impartial one. An employer has no obligation to assist a claimant’s case to its own detriment and as such “It is not legitimate for a Tribunal to draw adverse inferences against an employer who fails to do so”. The judgment therefore provides some comfort to employers conscious of their litigation duties but anxious to protect their position.

For claimants, this judgment is further reminder that pleading ignorance of the Tribunal procedure will only get you so far: sympathy and support for unrepresented litigants have their limits.

To avoid the issues faced by both Mr Efobi and Royal Mail Limited it is therefore important to obtain legal advice at as early a stage as possible. At Becket Chambers we have a team of employment barristers able to advise and represent both employees and employers and our early intervention in a case will often mean that litigation and its associated costs can be avoided.