Royal Mail did not call the recruiters who had turned down Mr Efobi’s applications. Could their absence supply the evidence needed to shift the burden of proof in a race discrimination claim? The answer turned on what the tribunal could infer from all the evidence it had.
The applications and the appeals
Mr Efobi, a Royal Mail postman, applied repeatedly for other posts within the company. He alleged that race explained his lack of success. The particular claim before the Supreme Court was direct discrimination in recruitment.
In June 2015 he claimed direct and indirect race discrimination and harassment in relation to those applications. He later added a claim that he had been victimised at work because he had brought the proceedings. The employment tribunal upheld the victimisation claim and one harassment claim. It dismissed the other claims, including direct discrimination.
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He appealed against that dismissal. The Employment Appeal Tribunal held that the tribunal had wrongly treated section 136(2) of the Equality Act 2010 as imposing an initial burden on him, and had also erred in assessing the evidence. It ordered a rehearing. The Court of Appeal reversed both conclusions. On the burden of proof it was bound by its earlier decision in Ayodele v Citylink Ltd. Mr Efobi appealed to the Supreme Court on the meaning of section 136 and on the tribunal’s refusal to draw adverse inferences.
Did the Equality Act change the burden of proof?
Direct discrimination means treating someone less favourably because of a protected characteristic, here race. The employer’s reasons are usually outside the claimant’s knowledge. Lord Leggatt recalled Lord Browne-Wilkinson’s observation that those who discriminate do not in general advertise their prejudices and may not even be aware of them. The law nevertheless avoids requiring an employer to disprove a mere assertion.
Under the Race Relations Act 1976, the claimant first had to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that discrimination had occurred. If not, the claim failed. If so, the employer had to prove that race played no part, failing which the claim succeeded. Similar provisions applied to other forms of discrimination and implemented European directives. The tribunal did not have to split the hearing. It could hear all the evidence before deciding whether the burden had moved. At the first stage it had to ignore the employer’s explanation, but it could consider evidence of facts from either side, including facts that undermined the claim.
Section 136(2) replaces the words “the complainant proves facts” with “if there are facts”. If there are facts from which the court could decide, in the absence of any other explanation, that the Act was contravened, it must so hold unless the employer shows that there was no contravention. Mr Efobi said this removed any initial burden and prevented a submission of no case to answer. The Appeal Tribunal had accepted that argument.
Lord Leggatt, with whom Lord Hodge, Lord Briggs, Lady Arden and Lord Hamblen agreed, held that the change was not substantive. The courts had already decided that all relevant evidence, not merely the claimant’s, could be considered at the first stage. The new wording made that clear. The change from “an adequate explanation” to “any other explanation” likewise confirmed that the reason need not be fair or creditable, provided it had nothing to do with the protected characteristic. The Explanatory Notes said that the burden starts with the claimant and shifts only once sufficient facts are established. Nothing suggested that Parliament intended to abolish that burden.
Ordinary civil evidence rules lead to the same conclusion. A tribunal may find that there are facts only if the relevant assertions are more likely than not to be true. The claimant must therefore still prove the facts from which discrimination could be inferred if unexplained. Facts proved by the employer which prevent that inference must also be taken into account. The comparison with the neutral fairness assessment in unfair dismissal did not help: that assessment, like the question whether an inference could be drawn, is an evaluation, not a finding of primary fact. Section 136 also does not legally forbid dismissal of a plainly hopeless claim after the claimant’s evidence, although stopping at that point will seldom be safe.
The employment tribunal had required Mr Efobi to prove facts from which it could conclude that there was discrimination. Its summary was incomplete, particularly because it did not say that any explanation had to be ignored at the first stage. Lord Leggatt considered that the tribunal could be taken to have understood the law and that the incompleteness did not prejudice Mr Efobi. Placing the initial burden on him was not an error of law. These provisions matter where the necessary facts are in doubt; they have nothing to offer where the tribunal can make positive findings either way.
The decision not to call the recruiters
Royal Mail called two managers familiar with its recruitment processes, but nobody who had actually dealt with Mr Efobi’s applications. Those witnesses could describe likely reasoning, not the actual reasons. The Court of Appeal said that this might prevent an employer from discharging a second-stage burden, but that no adverse inference could be drawn at the first stage merely because no explanation had been given. Lord Leggatt agreed with that limit, because the first stage assumes the absence of an explanation. He did not accept that a failure to call a decision-maker can never support any adverse inference. Whether it should is a matter of context and common sense, including the witness’s availability, the evidence that could reasonably be expected, the other evidence, and the importance of the point.
This tribunal did not treat itself as legally barred from drawing an inference. It simply drew none. Mr Efobi could succeed only if no reasonable tribunal could have refused to do so. He said it should have inferred that the successful candidates were of a different race or ethnic origin, and that the recruiters knew his race. The tribunal had no evidence of the successful candidates’ race. Evidence, which it did not mention, that seven hired candidates were born in the United Kingdom and one in India did not compel the first inference. An employer need not call someone merely in case that person remembers something helpful to the claimant.
The second inference was also not required. The online form included town and country of birth. Only external applicants had to complete those fields, but the tribunal found that Mr Efobi mistakenly continued to provide the information after becoming a direct employee. It found that recruiters sifted thousands of applications and that there was no reason to believe this information had been searched for, viewed or taken into account.
Even if both inferences had been drawn, they would not have shifted the burden. A difference in race and a difference in treatment show only a possibility of discrimination. Without more, they are not facts from which the tribunal could conclude that unlawful discrimination occurred. There was ample evidence for the finding of no prima facie case. Had Mr Efobi crossed that threshold, the absence of the decision-makers might have made it difficult for Royal Mail to prove that race played no part. He had not done so, and the tribunal was entitled to dismiss the claim.
Verdict: The Supreme Court unanimously dismissed Mr Efobi’s appeal. Section 136 of the Equality Act 2010 retained the claimant’s initial burden, and the tribunal was entitled to draw no adverse inference from the recruiters’ absence. His separate successful claims concerning victimisation and one instance of harassment were outside the appeal.
