Employment Law Speed Read – 04/02/19

Facts

Mr Efobi is black and was born in Nigeria; he was employed as a postman by the Royal Mail Group and commenced his employment in August 2013. Mr Efobi has qualifications, both graduate and post-graduate, in Information Systems and Forensic Computing. Mr Efobi aspired to secure a management or IT-related role within the company and made numerous internal applications throughout his employment.

The application process for the Royal Mail Group is prolonged and includes various stages. First, an application is made online; the application form includes the name of the applicant and their country of birth. The applicant is also required to submit their CV. Following this, a recruiter reviews the applications and produces a list of potential candidates. This list is further reviewed and condensed; the selected candidates are then required to sit a psychometric test followed by an interview.

Mr Efobi was unsuccessful in all 33 of his applications for internal IT roles. On this basis, Mr Efobi made a complaint to the Employment Tribunal (ET) alleging various complaints of discrimination, including direct discrimination on the grounds of race.

Employment Tribunal

In order to successfully bring a claim for unlawful discrimination, the burden of proof rests upon the employee to establish that on the balance of probabilities, the alleged discrimination has occurred. If this burden is discharged, the onus shifts to the employer who must satisfy the tribunal that the alleged treatment was not in fact discriminatory.

The ET dismissed Mr Efobi’s claim of direct discrimination and held that Mr Efobi had failed to discharge the burden of proof as he had failed to adduce any evidence about the race of the successful candidates, or those who had been short-listed. Further, the ET held that in any event, Mr Efobi’s CV was unsatisfactory, and his arguments were “uncorroborated”, “implausible” and “lacked cogency”. As such, the Royal Mail Group had good reasons, which were untainted by discrimination, to prefer the other candidates.

Mr Efobi appealed to the Employment Appeal Tribunal (EAT).

Employment Appeal Tribunal

The EAT found in favour of Mr Efobi and allowed the appeal. The EAT held that the ET had erred in its analysis of the way in which it approached the burden of proof in direct discrimination cases. The EAT was also not satisfied that the ET had sufficiently scrutinised all of the relevant factors which may have enabled Mr Efobi to discharge his burden of proof.

Further, the EAT held that the ET should have considered whether it should draw inferences from the fact that the Royal Mail Group failed to put forward any evidence about the successful candidates.

The case was remitted to a new tribunal. The Royal Mail Group appealed to the Court of Appeal (CA).

Court of Appeal

The CA found in favour of the Royal Mail Group and allowed the appeal. The CA held that the burden of proof was on Mr Efobi to establish that he had been unlawfully discriminated against; however, Mr Efobi had failed to adduce sufficient evidence to demonstrate this. Accordingly, the ET was entitled to reach the conclusion that it did.

Comment

This case clarifies the burden of proof that the Claimant is required to discharge when bringing a claim of unlawful discrimination.

The case also confirms that employers are not under an obligation to put forward evidence which may advance an employee’s case, and that it would be illegitimate for a Tribunal to draw inferences against an employer who fails to do so.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.