Royal Mail Group Ltd v Efobi

Factual and Procedural Background

The Plaintiff, a black Nigerian citizen of the Republic of Ireland with graduate and post-graduate qualifications in Information Systems and Forensic Computing, was employed by Company A as a postman from August 2013. The Plaintiff sought employment in management and IT service roles within Company A and applied unsuccessfully for approximately twenty-two such posts. He alleged direct and indirect race discrimination in the recruitment process, alongside claims of harassment and victimisation. The Employment Tribunal (ET) rejected the claims of direct and indirect discrimination but upheld some harassment and victimisation claims.

The Plaintiff appealed the ET's rejection of direct discrimination claims. The Employment Appeal Tribunal (EAT) found errors in the ET's legal analysis, particularly regarding the burden of proof, and remitted the case to a different ET for reconsideration of direct discrimination. Company A now appeals the EAT decision, arguing no legal error was made and challenging the scope of the remitted hearing.

Legal Issues Presented

1. Whether the Employment Tribunal erred in its application of the burden of proof in direct race discrimination claims under section 136 of the Equality Act 2010.
2. Whether the Employment Appeal Tribunal correctly remitted the case to a fresh Employment Tribunal with a limited scope.
3. Whether the Employment Tribunal properly assessed the evidence to determine if the Plaintiff discharged the burden of proof to establish a prima facie case of direct discrimination.
4. Whether the Employment Tribunal erred in its approach to the evidence and in not calling actual decision-makers involved in recruitment decisions.

Arguments of the Parties

Appellant's Arguments (Company A)

• The Employment Tribunal did not err in its legal analysis or application of the burden of proof.
• The Tribunal considered all evidence in the round, including evidence from experienced recruitment witnesses, and identified innocent, non-race related reasons for the Plaintiff's unsuccessful applications.
• It was not incumbent on Company A to call every decision-maker involved in recruitment to explain each rejection.
• The limited scope of the remitted hearing was appropriate to prevent re-shaping of the case.

Appellee's Arguments (Plaintiff)

• The Employment Appeal Tribunal's decision correctly identified errors in the ET’s approach to the burden of proof and evidence assessment.
• The Plaintiff, as a litigant in person, was disadvantaged in accessing relevant evidence, which Company A failed to provide voluntarily.
• The failure of Company A to call actual decision-makers justified drawing adverse inferences against it.
• The recruitment process showed indications of discrimination, including the Plaintiff’s qualifications, his African origin, and the absence of black African or Nigerian successful candidates.
• The ET should have considered each application individually rather than generically.

Table of Precedents Cited

Court's Reasoning and Analysis

The court examined the Employment Tribunal’s application of the burden of proof in direct race discrimination claims under section 136 of the Equality Act 2010. It reaffirmed the binding precedent from Ayodele that the two-stage burden of proof approach remains valid: the claimant must first establish facts from which a tribunal could conclude, absent explanation, that discrimination occurred; then the burden shifts to the employer to provide a non-discriminatory explanation.

The court rejected the Employment Appeal Tribunal’s reasoning that the claimant bore no burden at the first stage, confirming that the original ET did not err in this respect. It further held that the ET had sufficient evidence to conclude that the claimant failed to discharge the burden at the first stage, due largely to the absence of evidence about the other candidates, including their qualifications, experience, and race, which prevented identification of appropriate comparators.

The court accepted the ET’s assessment that the Plaintiff’s CVs were generic and less suited to the posts applied for, which was a relevant factor in recruitment decisions. The court also noted that external recruiters, who were not alleged to have discriminated, rejected some of the Plaintiff’s applications, undermining any inference of systemic racial bias.

The court found no error in the ET’s refusal to draw adverse inferences against Company A for failing to call actual decision-makers, emphasizing that adverse inferences cannot be drawn at the first stage where the burden rests on the claimant. It also emphasized the Plaintiff’s failure to seek relevant evidence through discovery or witness orders until late in proceedings.

The court considered the EAT’s suggestion that the ET did not scrutinize evidence rigorously enough but found the ET’s analysis thorough and justified. It rejected the argument that findings of harassment and victimisation in other parts of Company A’s business were relevant to the recruitment discrimination claims, noting no connection between the managers involved in those claims and those responsible for recruitment decisions.

Finally, the court dismissed the argument that the ET should have considered each job application individually at the first stage, holding that a generic approach was appropriate given the lack of specific allegations and evidence relating to each post.

Holding and Implications

The appeal is allowed. The court restores the Employment Tribunal’s original finding that there was no direct race discrimination against the Plaintiff in relation to the recruitment to the relevant posts.

The direct consequence of this decision is that the Plaintiff’s claims of direct discrimination in recruitment fail. The court did not set any new precedent but reaffirmed existing principles regarding the burden of proof in discrimination cases and the evidential requirements to establish a prima facie case. The scope of the remitted hearing ordered by the Employment Appeal Tribunal is rendered unnecessary by this decision.