Royal Mail Group Ltd v Mr Ike Efobi
| Jurisdiction | England & Wales |
| Judge | Sir Patrick Elias,Lord Justice Baker,Lord Justice Underhill |
| Judgment Date | 23 January 2019 |
| Neutral Citation | [2019] EWCA Civ 18 |
| Docket Number | Case No: A2/2017/2540 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 January 2019 |
[2019] EWCA Civ 18
Lord Justice Underhill
(Vice-President of the Court of Appeal (Civil Division))
Lord Justice Baker
and
Sir Patrick Elias
Case No: A2/2017/2540
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE EMPLOYMENT APPEAL TRIBUNAL
Mrs Justice Elisabeth Laing DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Simon Gorton QC and Mr David Flood (instructed by Weightmans Llp) for the Appellant
Mr Tom Coghlin QC and Mr Navid Pourghazi (instructed by Leigh Day) for the Respondent
Hearing date: 27 th November 2018
Approved Judgment
This is an appeal against the decision of the Employment Appeal Tribunal (Elisabeth Laing J presiding) in which it upheld an appeal from a decision of the Employment Tribunal which had rejected certain claims for direct race discrimination. We have been ably assisted by all counsel in this case. We are particularly grateful to counsel for the claimant, Mr Coghlin QC and Mr Pourghazi, and his solicitors Leigh Day, all of whom have acted pro-bono. Counsel put the claimant's case forcefully and skilfully.
The facts.
The claimant (as I shall call him, although he was the respondent to this appeal) is a black Nigerian and a citizen of the Republic of Ireland. He has qualifications, both graduate and post-graduate, in Information Systems, including a BSc honours degree in that subject, and qualifications in Forensic Computing. He was employed by the Royal Mail Group (“RMG”) from August 2013 in the operational department of the Service as a postman, which involved sorting and delivering mail. However, he wanted to be employed in the management/IT service area. To this end he applied for many posts and was unsuccessful with respect to all of them. He considered that he had been discriminated against on the grounds of his race. He brought proceedings for both direct and indirect discrimination in relation to his failure to obtain twenty-two of these posts and also with respect to certain other matters which are not now relevant to this appeal. However, he failed to establish that there was any direct or indirect discrimination in the way in which RMG dealt with his job applications. In addition he made complaints of both harassment and victimisation discrimination. He was successful with respect to some of these allegations (which are not directly relevant to this appeal) and in that context the ET was highly critical of certain line managers to whom he was accountable.
He appealed only the finding that there had been no direct discrimination with respect to his job applications and the appeal was successful. The EAT held that in various ways the ET had erred in its analysis of that question, and in particular in the way it approached the burden of proof in direct discrimination cases. It remitted the case to a different employment tribunal for it to consider the issue of direct discrimination afresh. The EAT carefully prescribed the scope of the remitted hearing, indicating in some detail which findings should be preserved and directing that no fresh witnesses could be called. The rationale for this was that the judge took the view that “it would [not] be right to give the Respondent the opportunity substantially to re-shape its case”. RMG now appeals against the EAT decision. Its principal case is that there was no material error by the ET in its legal analysis, but as a subsidiary issue it contends that even if the ET was in error as the EAT held, the limited scope of the remission was unjustified.
The recruitment procedures.
The ET heard evidence about the way in which the RMG deals with recruitment to managerial and IT roles. Most of the posts sought by the claimant were in the IT field comprising technology, information and security systems. The process of recruitment is quite complex. Applications would be made on-line. They would include the name of the applicant and there was space on the application form for the town and country of birth. External candidates were required to provide this information; the claimant, as an internal candidate, was not but he was under the misapprehension that he was and so he provided it. A candidate would be required to upload a CV together with his application form. The relevant steps in the process were described by the ET in some detail. Essentially the Tribunal found them to be as follows:
(a) A hiring manager would provide a dedicated recruiter with a job brief which would form the basis of an advertisement. The recruiter would sift through all the applications. Typically there would be a great number of applicants in respect of nearly every job. The recruiter would produce a long list and discuss it with the hiring manager. The latter would emphasise the specific requirements and ask the recruiter to produce a shortlist of just four or five persons. The hiring managers would not want to see more CVs than those relating to the most promising candidates and typically would not be interested in the personal details on the form.
(b) Persons on the shortlist would be interviewed. Prior to the interview they would undertake a test provided by an external consultant and known as Talent Q. It provides psychometric testing called “Dimensions”. The purpose is to identify information about the individual applicant which might be explored at the interview.
(c) There is a second aspect of Talent Q known as “Elements” which tests skills and abilities. This has three sections, respectively “numerical”, “verbal” and “logic”. This is done under time pressure. The hiring manager decides which parts will be relevant to the particular post.
(d) The hiring manager making the recruitment decision therefore has the CV, Dimensions and Elements results and shortlisting information. A candidate will only be appointed if the post is within budget and still open and if a suitable candidate is identified. Sometimes a post is cancelled or filling it is postponed. Feedback is not given routinely but usually is provided on request.
The ET noted that the personal information could be seen by a recruiter or manager if they actively took steps to see it, but they would not normally need to do so and typically would not wish to do so. The information was only relevant with respect to the successful applicant, when questions of security and his or her eligibility to work in the UK would arise.
The Law.
Section 13(1) of the Equality Act 2010 defines direct discrimination as follows:
“(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.”
It requires a comparison between the claimant and either an actual or a hypothetical comparator.
Section 136 is central to this appeal and deals with the burden of proof. So far as is material it provides:
“(2) If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision concerned, the court must hold that the contravention occurred.
(3) But subsection (2) does not apply if A shows that A did not contravene the provision.”
Prior to the enactment of this section, there were separate provisions on the burden of proof found in different discrimination statutes as a result of amendments to those statutes to give effect to provisions of EU law. They were cast in very similar terms to each other but were framed differently from section 136. For example, section 63A of the Sex Discrimination Act 1975 was as follows:
“Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent —
(a) has committed an act of discrimination against the complainant which is unlawful by virtue of Part 2, or
(b) is by virtue of section 41 or 42 to be treated as having committed such an act of discrimination against the complainant, the tribunal shall uphold the complaint unless the respondent proves that he did not commit, or, as the case may be, is not to be treated as having committed, that act.”
Similar provisions were found in section 54A of the Race Relations Act 1976.
The way in which these earlier provisions ought to be applied has been considered in a number of cases, notably two Court of Appeal decisions, Igen v Wong [2005] ICR 931 and Madarassy v Nomura International plc [2007] ICR 867. Both concerned section 63A of the 1975 Act rather than the crisper statement of principle in section 136. However, in Ayodele v Citylink Ltd. [2018] ICR 748 the Court of Appeal considered and rejected a submission that these authorities could no longer be relied upon in the light of the change of wording. It is not necessary to set out in detail the careful reasoning of Singh LJ (with whose judgment Davis and Beatson LJJ agreed) which caused the court to reach that conclusion. He was satisfied that the earlier authorities gave proper effect to EU law which was the source of these provisions and there was no justification for assuming that Parliament had intended to depart from those principles in the Equality Act. The effect of Adoyele, therefore, is that the earlier precedents remain apposite to the construction of section 136 and are binding on this court.
The authorities demonstrate that there is a two-stage process. First, the burden is on the employee to establish facts from which a tribunal could conclude on the balance of probabilities, absent any explanation, that the alleged discrimination had occurred. At that stage the tribunal must leave out of account the employer's explanation for the treatment. If that burden is discharged, the onus shifts to the employer to give an explanation for the alleged discriminatory treatment and to...
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