Efobi v Royal Mail Group Ltd (Race Discrimination), United Kingdom Employment Appeal Tribunal, Judgment, Law, casemine.com

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MR TOM COGHLIN
MR STEVE PEACOCK

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Efobi v. Royal Mail Group Ltd (Race Discrimination)

Smart Summary

Factual and Procedural Background

The Appellant, a black African originally from Nigeria, was employed by the Respondent as a postman and made around 33 unsuccessful applications for IT-related roles within the Respondent's organisation. The Employment Tribunal (ET) found that on one occasion the Respondent engaged in conduct amounting to harassment and victimisation related to the Appellant's race, but dismissed the Appellant's claims of direct discrimination in relation to the rejection of his job applications. The Appellant appealed only the dismissal of the direct discrimination claims connected to the job applications. The ET had limited the Appellant to relying on 22 of those applications during the hearing. The ET accepted the Respondent's explanation that the Appellant's generic CV and lack of relevant skills were the reasons for the unsuccessful applications, and found no evidence that race influenced the recruitment decisions. The Appellant challenged the ET’s approach and findings, arguing errors in law and fact, particularly concerning the burden of proof and the treatment of evidence.

Legal Issues Presented

Whether the Employment Tribunal erred in law by misapplying section 136 of the Equality Act 2010 regarding the burden of proof in discrimination claims.
Whether the ET failed to consider drawing an adverse inference against the Respondent due to the absence of evidence about the race of successful candidates and the absence of decision-maker witnesses.
Whether the ET erred in dealing with the Appellant's multiple job applications in aggregate rather than individually.
Whether the ET failed properly to consider or understand the evidence in deciding on inferences of direct discrimination.

Arguments of the Parties

Appellant's Arguments

The ET made findings unsupported by the evidence, particularly regarding the race of successful candidates and knowledge of the Appellant’s race by decision makers.
The ET adopted an objective approach rather than assessing the subjective state of mind of individual decision makers as required in discrimination law.
The ET improperly treated the Appellant’s multiple applications collectively instead of considering each application separately.
The Respondent failed to produce evidence about the race or national origins of successful candidates and did not call decision makers to give evidence, which should have led to an adverse inference.
The ET failed to recognise the Respondent's non-compliance with the EHRC Code of Practice regarding data collection on applicants’ protected characteristics.
The ET accepted second- or third-hand evidence reconstructing decision makers’ reasoning, which was insufficient.
The Appellant's generic CV was challenged by the ET, but the Appellant argued he was unable to tailor it without risking fraud allegations.
The Appellant relied on case law establishing that liability attaches if a discriminatory act is motivated by a protected characteristic and that the protected characteristic need only be more than a trivial cause.

Respondent's Arguments

The burden of proof provisions were less significant given the clear and credible explanation for rejection of applications based on the Appellant's generic CV and lack of relevant skills.
The ET was entitled to accept the Respondent’s explanation as to the reason for rejecting the Appellant’s applications, which was not discriminatory.
The ET was not required to consider each application individually because the jobs were similar and the reasons for rejection were consistent.
The Respondent was not obliged to disclose data about the race or national origins of successful candidates, and the Appellant did not request such disclosure.
The Respondent did not breach the EHRC Code of Practice, and changes to recruitment forms were made to prevent potential discrimination.
The ET’s approach to burden of proof and evidence was appropriate and consistent with relevant case law.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
IPC Media Ltd v Millar [2013] IRLR 707	Identification of decision maker(s) in discrimination claims	Accepted that the ET must consider the subjective state of mind of each decision maker to determine if race was a factor.
Reynolds v CLFIS (UK) Ltd [2015] EWCA Civ 439; [2015] ICR 1010	Protected characteristic need only be a more than trivial cause of discrimination; employer liability for discriminatory acts by employees	Applied to confirm that race need not be the sole cause and liability attaches if an employee is motivated by the protected characteristic.
Meister v Speech Design Carrier Systems GmbH Case C-415/10 [2012] ICR 1006	Consideration of refusal to disclose information about successful candidates in discrimination claims	Referenced regarding the inference a court may draw if an employer refuses disclosure; uncertainty whether the Appellant requested such disclosure.
Prest v Petrodel Resources Ltd [2013] UKSC 34; [2013] 2 AC 415	Drawing adverse inferences from incomplete or obstructive evidence	Supported the proposition that silence or failure to produce evidence may allow an adverse inference against the party responsible.
R v Inland Revenue Commissioners ex p TC Coombs & Co [1991] 2 AC 283	Adverse inferences from silence or failure to provide evidence	Adopted and modified in Prest; relevant by analogy for drawing inferences in discrimination claims.
Herrington v British Railways Board [1972] AC 877	Authority on drawing adverse inferences from witness absence or silence	Referred to support the principles on adverse inferences applied in discrimination context.
Wisniewski v Central Manchester Health Authority CA [1998] PIQR P324	Drawing adverse inferences from absence of a key witness	Approved the drawing of adverse inferences where a witness refuses to attend trial without satisfactory explanation.
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] ICR 337	Formulation of the test for discrimination claims	Referenced in relation to the burden of proof and the test an ET applies in discrimination claims.
Barton v Investec Henderson Crosthwaite [2003] ICR 1205	Guidance on burden of proof shifting in discrimination claims	Accepted that the ET must consider whether material exists from which an inference of discrimination could be drawn.
Igen Ltd v Wong [2005] EWCA Civ 142; [2005] ICR 931	Burden of proof in discrimination claims; compliance with EHRC Code of Practice	Referenced regarding burden of proof and the Respondent’s duty to comply with the Code of Practice on data collection.
Madarassy v Nomura International plc [2007] EWCA Civ 33; [2007] ICR 867	Interpretation of burden of proof provisions in discrimination law	Applied to interpret the meaning of "could" in section 136 and to guide the ET on burden of proof.
Pnaiser v NHS England [2016] IRLR 170 EAT	Consideration of section 136 of the Equality Act 2010	Mentioned as one of the few cases directly considering section 136, though not addressing the burden of proof issue in detail.
Fennell v Foot Anstey UKEAT/0290/15/DM	Consideration of section 136 of the Equality Act 2010	Referenced as another case where section 136 was considered without detailed analysis of the burden of proof issue.
Westminster City Council v NASS [2002] UKHL 38; [2002] 1 WLR 2956	Use of Explanatory Notes in statutory interpretation	Applied to reject reliance on Explanatory Notes over statutory language for interpreting section 136.

Court's Reasoning and Analysis

The Employment Appeal Tribunal (EAT) focused on the correct interpretation and application of section 136 of the Equality Act 2010, which governs the burden of proof in discrimination claims. The EAT held that the Employment Tribunal (ET) misdirected itself by effectively imposing an initial burden of proof on the Appellant, contrary to the statutory language which places no initial burden on the claimant but requires the ET to consider all evidence at the end of the hearing to decide if facts exist from which discrimination could be inferred unless the Respondent provides a satisfactory explanation.

The EAT emphasised that the ET must consider the entire body of evidence, including that adduced by the Respondent, before concluding whether discrimination occurred. The ET's approach, which required the Appellant to prove discrimination at an initial stage, was incorrect.

The EAT also identified errors in the ET's factual findings, notably the ET's incorrect conclusions that no evidence was adduced regarding the race of successful candidates and that all decision makers who rejected the Appellant's applications had left the Respondent's employment. The EAT found that some evidence about the race of successful candidates was before the ET and that there was no evidence all decision makers had left employment.

The EAT noted the Respondent's failure to call decision makers as witnesses and failure to disclose information within its knowledge about successful candidates' race or national origins, which should have led the ET to consider drawing adverse inferences against the Respondent.

The EAT acknowledged that the ET accepted the Respondent's explanation that the Appellant's generic CV and lack of relevant skills justified the rejection of applications, but found that the ET did not rigorously scrutinise this explanation in light of the burden of proof provisions and the available evidence.

The EAT further held that the ET erred in treating the Appellant's multiple applications in aggregate rather than considering each application individually, which was necessary given the statutory test and the nature of discrimination claims.

While the EAT did not decide whether discrimination occurred, it concluded that the ET's misdirection and approach to the evidence rendered its decision unsafe and that the matter should be reconsidered by a differently constituted ET.

Holding and Implications

The Employment Appeal Tribunal ALLOWED the appeal and REMITTED the direct discrimination claims relating to the Respondent's rejection of the Appellant's job applications to a differently constituted Employment Tribunal for reconsideration.

The remitted hearing is to preserve specific findings already made by the ET and allow the parties to call previously heard witnesses and rely on their evidence. The scope of the hearing is limited to avoid substantial reshaping of the Respondent's case. The new ET will decide whether the direct discrimination claims succeed based on a proper application of section 136 and a rigorous assessment of all evidence, including any adverse inferences.

No new precedent was established; the decision primarily affects the parties by requiring a fresh hearing to address errors of law and fact identified in the original ET judgment.