The Supreme Court in Royal Mail Group v Efobi (2021) has confirmed that the burden of disproving an allegation of discrimination does not shift to the employer, unless the Claimant has first established a prima facie case.
The Claimant identifies as a black African and Nigerian. He worked as a postman for Royal Mail. He wanted a more managerial role so that he could put his qualifications to use. He submitted over 30 applications for such roles with his employer over a number of years, but none were successful. He brought a claim to the employment tribunal on the basis that the rejection of his applications was as a result of race discrimination. His claim was dismissed by the tribunal. The Employment Appeal Tribunal upheld his appeal. The EAT held that the tribunal had been wrong to interpret section 136 of the Equality Act 2010 as imposing on the Claimant an initial burden of proof.
Section 136 of the Equality Act 2010, which deals with the burden of proof in discrimination claims, imposes a two-stage test. In respect of stage one, the relevant wording is “if there are facts from which the court could decide.” However, this wording had changed from the older provisions in the Race Relations Act 1976 (which the Equality Act 2010 replaced) where the wording was “where the complainant proves facts.” On this basis, the Claimant argued that that there was no longer a requirement on him to prove facts at the initial stage, but rather, the position was now neutral, and that it was simply for the tribunal to determine ‘if there are facts.’
The Court of Appeal reversed the EAT’s decision, finding that the tribunal did not make any error of law. The Supreme Court agreed and dismissed the Claimant’s appeal. The Supreme Court held that the change of wording under the Equality Act did not change the law, and that the burden of proving his or her case begins with the Claimant. Once sufficient facts have been established by the Claimant pointing to discrimination, and in the absence of any other explanation, the burden then shifts to the employer to disprove the allegation. The Court held that the change of wording was simply to make clear that the tribunal is required to consider all of the evidence at the first stage, and not simply that adduced by the Claimant.
During the employment tribunal hearing, Royal Mail did not call evidence from any of the actual decision makers who determined that the Claimant’s applications were unsuccessful, in circumstances where his race was stated on his application forms. On this basis, the Claimant also argued that the tribunal failed in its duty to draw adverse inferences. However, the Supreme Court held that tribunals have a wide discretion as to whether to draw, or not to draw, adverse inferences, and that it was not unreasonable for adverse inferences not to have been drawn on the facts of this case. It stated that: “there can be no reasonable expectation that a respondent will call someone as a witness in case that person is able to recall information that could potentially advance the claimant’s case.”
In addition, even if adverse inferences had been drawn, on the basis that the recruiters (who were not called to give evidence) were aware of the Claimant’s race, it was held that this would not, without more, have been sufficient to establish a prima facie case of discrimination.
Don’t forget, this advice is general in nature and will need to be tailored to any one particular situation. As an RMI member you have access to the RMI Legal advice line, as well as a number of industry experts for your assistance. Should you find yourself in the situation above, contact us at any stage for advice and assistance as appropriate.
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