Efobi v Royal Mail Group: Much Ado About Nothing?
| Published date | 01 November 2022 |
| Author | Jeremy Letwin,Josephine Rendall‐Neal |
| Date | 01 November 2022 |
| DOI | http://doi.org/10.1111/1468-2230.12710 |
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Modern Law Review
DOI:10.1111/1468-2230.12710
CASES
Efobi vRoyal Mail Group: Much Ado About Nothing?
Jeremy Letwin∗and Josephine Rendall-Neal†
Following the Supreme Court’s recent decision in Efobi vRoyal Mail Group, claimants in em-
ployment tribunals must rst prove a prima facie case of discrimination before the burden of
proof falls on the respondent to provide a non-discriminatory explanation for the impugned
conduct. The two stages are separate. Tribunals cannot draw any inferences from a respondent’s
explanation (or lack of explanation) when deciding whether there is a prima facie case of dis-
crimination. We argue that,in reaching this decision, the Supreme Court failed to tackle squarely
the important normative question at the heart of the dispute: whether thereshould be constraints
on the evidence courts may consider when adjudicating whether there is a prima facie case of
discrimination. Had the Supreme Court confronted this normative question, the outcome of
the case might have been dierent.
INTRODUCTION
How should the burden of prooffunction in discr imination cases? In Royal Mail
Group Ltd vEfobi1(Efobi), the Supreme Court held unanimously that claimants
bear the initial burden of proof to establish a prima facie case of discrimination,
and thus seemed to restore the orthodoxy which had been upset by the earlier
Employment Appeal Tribunal (EAT) judgment.2
Efobi appears at rst sight to be a dry, technical case about the precise words
of section 136 of the Equality Act 2010 (the 2010 Act) – causing even Lord
Leggat to wonder if it was ‘much ado about nothing’.We argue, in contrast,that
behind this bland appearance, Efobi really concerned the impor tant principle
of whether there should be constraints on the evidence courts may consider.
We begin by explaining the facts of the case and disentangling its complex
procedural history. We then argue that if the Supreme Court had recognised
the true importance of the principle at stake in Efobi, the outcome of the case
might have been dierent.
∗Dickson Poon School of Law, King’s College London.
†Associate, GQ Littler. The authors would like to thank Oliver Letwin for his comments on earlier
drafts of this note, and are also grateful for the comments of the anonymous referee.
1 [2021] UKSC 33 (Efobi (SC)).
2 [2018] ICR 359 (Efobi (EAT)).
© 2021 The Authors. The Modern Law Review© 2021 The Moder n Law ReviewLimited. (2022)85(6) MLR 1504–1514
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