Evidential burden

The Court of Appeal has held in Efobi v Royal Mail Group Ltd that the onus is on the claimant, not the employer, to establish a complaint of discrimination by adducing the necessary evidence to support their claim as a first stage in the process. Tribunals cannot therefore draw adverse inferences against an employer on the basis of an assertion of discrimination which is unsupported by evidence.

Basic facts

Mr Efobi, a black African from Nigeria worked as a postman for Royal Mail.  He wanted to work in management and IT-related jobs as he had a BSc Honours degree in Information Systems and qualifications in forensic computing. He applied for many posts, but all his applications were rejected.

He claimed direct and indirect race discrimination. 

Tribunal and EAT decisions

Rejecting his claims, the tribunal concluded that Mr Efobi had not proved facts from which it could conclude that there had been discrimination.  Specifically, he had not adduced any evidence to show that the successful applicants for the jobs were appropriate comparators. This was in contrast to the evidence adduced by Royal Mail that Mr Efobi had not demonstrated he had the required skills on his CV which was not tainted by discrimination. Mr Efobi had not therefore established a prima facie case of discrimination.

Mr Efobi appealed, arguing that the tribunal had wrongly directed itself in relation to the law on the burden of proof in section 136 of the Equality Act which states that, in the absence of any other explanation, a court must hold that discrimination has occurred

Allowing the appeal, the EAT (see weekly LELR 539) held that the tribunal had misunderstood the meaning of the words in section 136. In particular, the EAT held that the burden was not on the claimant but that the tribunal should consider all the facts including the employer’s failure to adduce evidence.

Decision of Court of Appeal

The Court of Appeal, however, disagreed, holding instead that the onus was on the claimant to adduce the information that was necessary to support his claim but which he had failed to do in this case.   Without information about the people who had been appointed, such as their skills and experience, it was not possible for the tribunal to infer a prima facie case of discrimination by any particular individual.

It was not incumbent on the employer to take steps to “ameliorate the problems” facing the claimant, possibly to their own detriment. As such, it was not legitimate for a tribunal to draw adverse inferences against an employer who had not provided information it thinks might advance the claimant’s case.  Where the information is in the employers hands the claimant could have identified what was required and requested this from the employer. 

In essence, the Court held that this was a case where the allegations of discrimination “were mere assertions”, which were not backed up with the necessary factual evidence. Mr Efobi’s claim therefore fell at the first stage as he had not provided the tribunal with the evidence to identify a particular comparator with whom he could be compared.

It therefore concluded that the tribunal was “manifestly entitled” to come to the conclusion that it had, as there was plenty of evidence to support that conclusion.