The Supreme Court has held in Royal Mail Group Ltd v Efobi that a change of wording in the law did not change the burden of proof in discrimination claims. Instead, it held that the burden did not shift to the employer until the tribunal found that there were facts from which, in the absence of any other explanation, it could infer an unlawful act of discrimination.
Mr Efobi, a black African from Nigeria, worked as a postman for Royal Mail. He wanted to work in management and IT-related jobs as he had a BSc Honours degree in information systems and qualifications in forensic computing. Between December 2011 and February 2015, he applied unsuccessfully for more than 30 posts with the company.
In June 2015, he brought claims of direct and indirect race discrimination against Royal Mail, among other things.
Section 136(2) of the Equality Act 2010, which deals with the burden of proof in discrimination cases, sets out the first of a two-stage test, as follows:
“If there are facts from which the court could decide, in the absence of any other explanation, that a person … contravened the provision concerned”, the court must hold that there has been discrimination.
The previous legislation (the Race Relations Act 1976) stated that the burden was on the claimant to prove facts.
Decisions of lower courts
The employment tribunal dismissed Mr Efobi’s claims of discrimination, but the EAT (weekly LELR 539) upheld them on the ground that the tribunal had wrongly interpreted section 136(2). The Court of Appeal (weekly LELR 613) reversed that decision.
Mr Efobi appealed again, arguing that the change in wording in section 136(2) meant that the burden was no longer on the claimant to prove anything at the first stage of the test. Instead, tribunals were required to consider all the evidence placed before them neutrally. He also argued that the tribunal should have drawn an adverse inference from Royal Mail’s failure to call relevant witnesses.
Supreme Court decision
The Supreme Court disagreed on both counts, holding that there had been no substantive change in the law. Under the old provisions, tribunals were required to consider evidence from all sources, including evidence from the employer. The new wording simply made clear that all evidence, regardless of whether it came from the employer or the claimant, should be considered at the first stage.
In addition, under the general rule of evidence in civil cases (including employment disputes), a tribunal can only find that something is a fact if there is sufficient evidence to underpin the assertions being made. As such, the law remains the same. In other words, the burden does not shift to the employer until the tribunal has found that there are facts from which, in the absence of any other explanation, it can infer an unlawful act of discrimination.
The Supreme Court also rejected Mr Efobi’s argument that the tribunal should have drawn an adverse inference from Royal Mail’s failure to call as witnesses any of the individuals who had dealt with his unsuccessful job applications. In this case, the tribunal could not be faulted as a matter of law for not drawing an adverse inference from the fact that none of the decision-makers had given evidence. Even if they had, the tribunal could not have gone on to conclude that there had been discrimination just because the recruiter was of a different race to Mr Efobi.
It concluded therefore that the burden of proof had not shifted to Royal Mail to explain its decisions and the tribunal was entitled to dismiss the claim.