Supreme Court rules on burden of proof in employment claims

The Supreme Court has upheld a decision that a postman had not been subjected to race discrimination when his applications for more than 30 jobs all failed.

In giving its judgment, the court clarified the correct approach to be taken by employment tribunals dealing with discrimination claims, particularly in reference to the burden of proof and whether any adverse inferences should be drawn if the employer chooses not to call certain witnesses.

The case involved Royal Mail Group Ltd (RMG) and Mr Efobi.

Efobi is a black Nigerian. He holds graduate and post-graduate qualifications in information systems. While working as a postman, he applied for over 30 IT posts with RMG over three years.

The applications were required to be made online and accompanied by a CV. Efobi uploaded a generic CV for each of his applications, which provided no context and was not specifically tailored to any of the roles he applied for. Even though he did not need to do so as an internal applicant, he included details of his town and country of birth on his applications.

The applications were handled by external recruiters working under the direction of a hiring manager employed by RMG.

All Efobi’s applications were unsuccessful. He brought an employment tribunal claim alleging that the failure of his applications resulted from direct race discrimination.

At the tribunal hearing, RMG did not call any of the recruiters or managers involved in processing his applications, nor did it provide any evidence as to the race and national origins of other applicants for the relevant posts.

RMG did call two witnesses who were familiar with its recruitment processes and the Employment Tribunal accepted that the successful candidates all had significantly longer and more relevant experience than Efobi and had produced more detailed and relevant CVs. The tribunal therefore dismissed the discrimination claim.

The Employment Appeal Tribunal (EAT) reversed that decision, and the case went all the way to the Supreme Court, which upheld the original ruling.

In doing so, it addressed some of the issues involving the burden of proof in such cases.

It held that there was no conflict between the requirements of the Race Relations Act 1976 and the Equality Act 2010, as had been suggested during the EAT hearing.

The legal position remained that there was a two-stage process for analysing complaints of discrimination.

At the first stage, the burden was 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 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 reasons 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.

The Supreme Court therefore held that, in adopting this approach to the evidence, the employment tribunal did not make any error of law.

As for the tribunal's refusal to draw adverse inferences from RMG's failure to call any decision-makers as witnesses, the Supreme Court emphasised that tribunals should be free to draw, or decline to draw, inferences in the case before them using their common sense.

Relevant considerations would naturally include whether the witness was available to give evidence, what evidence the witness could have given, what other evidence there was bearing on the points on which the witness could have given evidence, and the significance of those points in the context of the case as whole. How such matters should be assessed cannot be encapsulated in a set of legal rules.

The employment tribunal in this case could not be faulted as a matter of law for not drawing adverse inferences from the fact that none of the actual decision-makers gave evidence. In any case, even if those inferences had been drawn, the fact that the recruiter had been aware of Efobi's race and that the successful candidate was of a different race would not, without more, have enabled the tribunal to conclude that there had been discrimination.

Hence the burden of proof did not shift to RMG to explain its decisions and the tribunal was entitled to dismiss the claim.

Please contact us if you would like more information about the issues raised in this article or any aspect of employment law.