Royal Mail Group Ltd v Efobi

JurisdictionEngland & Wales
CourtSupreme Court
JudgeLord Leggatt,Lord Hodge,Lord Briggs,Lady Arden,Lord Hamblen
Judgment Date23 Jul 2021
Neutral Citation[2021] UKSC 33

[2021] UKSC 33

Supreme Court

Trinity Term

On appeal from: [2019] EWCA Civ 18

before

Lord Hodge, Deputy President

Lord Briggs

Lady Arden

Lord Hamblen

Lord Leggatt

Royal Mail Group Ltd
(Respondent)
and
Efobi
(Appellant)

Appellant

Charles Ciumei QC

Benedict Tompkins

(Instructed by Advocate (formerly known as the Bar Pro Bono Unit))

Respondent

David Reade QC

David Flood

Georgina Leadbetter

(Instructed by Weightmans LLP (Liverpool))

Heard on 27 April 2021

Lord Leggatt

( with whom Lord Hodge, Lord Briggs, Lady Arden and Lord Hamblen agree)

Introduction
1

The main issue raised on this appeal is whether a change in the wording of equality legislation has altered the burden of proof in employment cases where discrimination is alleged.

2

Section 54A(2) of the Race Relations Act 1976 provided that where, on the hearing of a complaint of discrimination or harassment on grounds of race:

“… 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 such an act of discrimination or harassment 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.”

3

This provision was one of a number of similarly worded provisions inserted in UK legislation by amendment pursuant to the European Communities Act 1972 on various dates between 2001 and 2006 in order to implement European Directives. Other such provisions included: section 63A of the Sex Discrimination Act 1975; section 17A(1C) of the Disability Discrimination Act 1995; regulation 29 of the Employment Equality (Religion or Belief) Regulations 2003 (SI 2003/1660); regulation 29 of the Employment Equality (Sexual Orientation) Regulations 2003 (SI 2003/1661); and regulation 37 of the Employment Equality (Age) Regulations 2006 (SI 2006/1031). (In two later provisions, not required by EU law, slightly different wording was used which referred to “a reasonable alternative explanation” instead of “an adequate explanation”: see section 66(5) of the Equality Act 2006 and regulation 20(5) of the Equality Act (Sexual Orientation) Regulations 2007 (SI 2007/1263).)

4

The relevant provisions of the European Directives were also in similar terms. Taking the example of discrimination on grounds of race, article 8(1) of Council Directive 2000/43/EC of 29 June 2000 required member states to take measures to ensure that:

“when persons who consider themselves wronged because the principle of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.”

See, in addition, article 4(1) of Directive 97/80/EC of 15 December 1997 on the burden of proof in cases of discrimination based on sex (extended to the UK by Council Directive 98/52/EC of 13 July 1998); and article 10(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation.

5

The Equality Act 2010 (the “2010 Act”) brought together into a single statute the domestic law prohibiting discrimination on grounds of all protected characteristics. Section 13(1) of the 2010 Act defines direct discrimination as follows:

“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.”

Section 54A(2) of the Race Relations Act 1976, along with all the other similar legislative provisions referred to at para 3 above, was repealed. They were replaced by section 136 of the 2010 Act, which states:

Burden of proof

(1) This section applies to any proceedings relating to a contravention of this Act.

(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. …”

6

The issue is whether the change of wording from “where … the complainant proves facts” to “[i]f there are facts” in section 136(2) made a substantive change in the law. The answer, in my opinion, is that it did not, for reasons that I will give after indicating how the issue has arisen in this case.

The claim in this case
7

The claimant, Mr Efobi, was born in Nigeria and identifies as black African and Nigerian. He is a citizen of the Republic of Ireland and holds qualifications in computing from Trinity College, Dublin, and Dublin City University. From 5 October 2011, he has been employed as a postman, initially by Angard Staffing Solutions Ltd, which provides staffing services to the respondent, Royal Mail Group Ltd (“Royal Mail”) and, from 27 August 2013, directly by Royal Mail.

8

Wishing to move from his job as a postman to a management or IT role in which he could put his computing qualifications to good use, the claimant made over 30 applications for such positions within Royal Mail on various dates between 30 December 2011 and 3 February 2015. None of the applications was successful.

9

In June 2015 Mr Efobi began proceedings against Royal Mail in the employment tribunal, complaining of indirect and direct discrimination in relation to his unsuccessful job applications and harassment on grounds of race. He later amended his claim to add a complaint that he had been victimised at work as a result of bringing his employment claim. In its decision on liability the tribunal upheld the complaint of victimisation and one of the complaints of harassment. The other claims were dismissed.

10

The claimant appealed against the dismissal of his direct discrimination claim to the Employment Appeal Tribunal: see [2018] ICR 359. The appeal tribunal (Elisabeth Laing J) allowed the appeal on two grounds. These were: (i) that the employment tribunal had wrongly interpreted section 136(2) of the 2010 Act (quoted at para 5 above) as imposing an initial burden of proof on the claimant; and (ii) that the employment tribunal had in any event erred in law in its assessment of the evidence. In the light of these conclusions, the appeal tribunal ordered that the claim be remitted for rehearing.

11

Royal Mail appealed from this decision to the Court of Appeal: see [2019] EWCA Civ 18; [2019] ICR 750. In the meantime, on an appeal to the Court of Appeal in another case, the decision of the Employment Appeal Tribunal in the present case on the interpretation of section 136(2) of the 2010 Act had been overruled: see Ayodele v Citylink Ltd [2017] EWCA Civ 1913; [2018] ICR 748. When the present case was heard by the Court of Appeal, the court was therefore bound by its previous decision in Ayodele to allow Royal Mail's appeal on this issue. The Court of Appeal (Sir Patrick Elias, with whom Underhill and Baker LJJ agreed) also held that the employment tribunal had not made any error of law in its analysis of the evidence and accordingly reversed the decision of the appeal tribunal.

The issues on this appeal
12

The claimant appeals to this court on two grounds. The first and principal ground concerns the correct interpretation of section 136(2) of the 2010 Act (the “burden of proof issue”). The second ground maintains that the employment tribunal erred in law in not drawing any adverse inference from the fact that Royal Mail adduced no evidence from anyone who actually dealt with any of the claimant's job applications (the “adverse inference issue”).

The burden of proof issue
13

I will refer to section 54A(2) of the Race Relations Act 1976 and the other similar provisions mentioned at para 3 above which were replaced by section 136 of the 2010 Act as “the old provisions”. I did not understand there to be any dispute between the parties about how the old provisions were interpreted by the courts.

Effect of the old provisions
14

The old provisions established a two-stage process for analysing complaints of discrimination. At the first stage, they placed the burden on the claimant to prove, on the balance of probabilities, facts from which the tribunal could conclude, in the absence of an adequate explanation, that an unlawful act of discrimination (or other prohibited conduct) had been committed. If that burden was not discharged, the claim failed. If such facts were proved, the burden moved to the employer to explain the reason(s) for the alleged discriminatory treatment and satisfy the tribunal that the protected characteristic played no part in those reasons. Unless the employer discharged that burden, the claim succeeded.

15

The rationale for placing the burden on the employer at the second stage is that the relevant information about the reasons for treating the claimant less favourably than a comparator is, in its nature, in the employer's hands. A claimant can seek to draw inferences from outward conduct but cannot give any direct evidence about the employer's subjective motivation — not least since, as Lord Browne-Wilkinson observed in Glasgow City Council v Zafar [1997] 1 WLR 1659 at 1664: “those who discriminate … do not in general advertise their prejudices: indeed they may not even be aware of them.” On the other hand, it would be unduly onerous to require an employer to disprove a mere assertion of discrimination. The aim of the old provisions was accordingly to strike a fair balance by requiring proof of primary facts from which, in the absence of explanation, an inference of discrimination could be drawn; but then, if that hurdle is surmounted, requiring the employer to prove that there has been no contravention...

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