Automated Summary
Key Facts
The claimant, Mr Efobi, a postman born in Nigeria who identifies as black African, made over 30 applications for management or IT roles within Royal Mail between December 2011 and February 2015, none successful. He claimed direct and indirect discrimination and harassment based on race. The employment tribunal dismissed his direct discrimination claim but upheld victimisation and harassment complaints. The appeal tribunal allowed his appeal on burden of proof interpretation and remitted for rehearing. The Court of Appeal reversed this decision. The Supreme Court held that the wording change from the Race Relations Act 1976 to section 136(2) of the Equality Act 2010 did not make a substantive change in the burden of proof law - the initial burden remains on the claimant to prove facts from which discrimination can be inferred, and the burden then shifts to the respondent to show no contravention occurred.
Issues
- The primary legal issue concerns whether the legislative change from the old provisions (section 54A(2) of the Race Relations Act 1976 and similar provisions) to section 136 of the Equality Act 2010, which altered the wording from 'where the complainant proves facts' to 'if there are facts', resulted in a substantive change to the burden of proof in employment discrimination cases. The Supreme Court had to determine if this change meant the initial burden on the claimant to prove facts was removed or replaced with a 'neutral burden' where the tribunal considers all evidence from all sources.
- The second issue concerns whether the employment tribunal erred in law by failing to draw adverse inferences from the fact that Royal Mail Group Ltd did not adduce evidence from anyone who actually rejected the claimant's job applications. The claimant argued that the tribunal should have drawn adverse inferences that successful applicants were of a different race or that recruiters were aware of his race when rejecting his applications. The Supreme Court had to determine if such inferences could properly be drawn at the first stage of analysis and whether the tribunal was justified in not drawing them.
Holdings
- The Supreme Court held that the change in wording from the old provisions to section 136(2) of the Equality Act 2010 did not make any substantive change in the law regarding the burden of proof in employment discrimination cases. The initial burden remains on the claimant to prove facts from which discrimination could be inferred, and the employment tribunal did not err in placing this burden on the claimant. The Court also held that the tribunal was not in error in refusing to draw adverse inferences from the employer's failure to call actual decision-makers as witnesses.
- The Supreme Court held that the employment tribunal was not in error in refusing to draw adverse inferences from the employer's failure to call actual decision-makers as witnesses. The claimant failed to show that no reasonable tribunal could have omitted to draw such an inference. The Court also affirmed that the tribunal had sufficient evidence to support its finding that there was no prima facie case of discrimination.
Legal Principles
The Supreme Court held that section 136(2) of the Equality Act 2010 did not make a substantive change to the burden of proof rules in employment discrimination cases. The court found that while the statutory wording changed from 'where... the complainant proves facts' to 'if there are facts', the practical effect remained the same. The initial burden remains on the claimant to prove facts from which discrimination could be inferred in the absence of explanation, and the burden then shifts to the respondent to show they did not contravene the provision. The change in wording was intended to clarify the existing case law rather than alter the substantive law.
Precedent Name
- Wisniewski v Central Manchester Health Authority
- Ayodele v Citylink Ltd
- Glasgow City Council v Zafar
- Hewage v Grampian Health Board
- Meister v Speech Design Carrier Systems GmbH
- Madarassy v Nomura International plc
- Laing v Manchester City Council
- Igen Ltd v Wong
Cited Statute
- Disability Discrimination Act 1995
- Equality Act 2010
- Race Relations Act 1976
- Employment Rights Act 1996
- Sex Discrimination Act 1975
Judge Name
- Lord Briggs
- Lord Hamblen
- Lord Leggatt, author of the judgment
- Lady Arden
- Lord Hodge, Deputy President
Passage Text
- 40. It does not follow, however, that no adverse inference of any kind can ever be drawn at the first stage from the fact that the employer has failed to call the actual decision-makers. It is quite possible that, in particular circumstances, one or more adverse inferences could properly be drawn from that fact.
- 34. Accordingly, in agreement with the Court of Appeal in Ayodele, I conclude that the change in the language used in section 136(2) of the 2010 Act has not made any substantive change in the law.
- 6.16 (2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred. (3) But subsection (2) does not apply if A shows that A did not contravene the provision.