Proving race discrimination: Our success in Court of Appeal
In the case of Efobi v Royal Mail Group Ltd, Weightmans successfully appealed against a decision of the Employment Appeal Tribunal.
The test for proving race discrimination, and the process an employment tribunal must follow to establish whether an allegation is well founded, are legally complex but fundamental to any claim.
Traditionally, an employment tribunal will approach a discrimination claim in two stages; firstly considering whether the Claimant has set out sufficient facts to establish a ‘prima facie’ case (or ‘first impression’) of discrimination and then, secondly, going on to consider an employer’s explanation for the allegedly discriminatory treatment.
In the case of Efobi v Royal Mail Group Ltd, we successfully appealed against a decision of the Employment Appeal Tribunal (EAT) which had thrown this long-established test into doubt.
The Court of Appeal, overturning the EAT’s decision, reiterated that the legal burden falls on the employee to show, as a first step, that there is a case of discrimination to answer. Unless and until the employee gets over that first hurdle, an employer is not obliged to provide detailed evidence regarding the reasons for the treatment.
The claimant, Mr Efobi, who is black and from Nigeria, is employed by Royal Mail Group Ltd (RMG) as a postman. During his employment he unsuccessfully applied for many management and IT service roles. He alleged that he had been discriminated against on the grounds of his race and brought proceedings relating to his failure to obtain 22 of these posts.
He failed to establish at the initial employment tribunal hearing that there was any direct or indirect discrimination in the way in which RMG dealt with his job applications. However, when he appealed against this decision, the EAT held that, in various ways, the employment tribunal had made errors in its analysis of this issue.
In particular, the EAT took issue with the employment tribunal’s approach to the ‘burden of proof’ test. The EAT held that, because of subtle changes to the wording of relevant discrimination provisions when the Equality Act 2010 was introduced, it was no longer necessary to apply a two-stage test or to impose an initial burden on a claimant to establish relevant facts. Because it felt that the employment tribunal had adopted an incorrect legal approach, the EAT upheld Mr Efobi’s appeal.
The Court of Appeal overturned the decision of the EAT and held that the established two-stage approach to analysing a discrimination claim should still be followed. First, the burden is on the employee to establish facts from which a tribunal could conclude, on the balance of probabilities, the alleged discrimination had occurred. If that burden is discharged, the onus shifts to the employer to give an explanation for the alleged discriminatory treatment and to satisfy the employment tribunal that this is not tainted by the relevant protected characteristic (in this case, the claimant’s race).
Looking back at the factual analysis carried out by the employment tribunal at the initial hearing, the Court of Appeal held that a robust approach had been adopted and that the employment tribunal was entitled to find that Mr Efobi had failed to establish a prima facie case of discrimination. He had not provided any relevant information about the identity or qualifications of any of the other candidates, including the shortlisted or successful ones, in relation to the posts. Neither could he show that his colour or country of origin was actually known to any particular hiring manager or recruiter. The employment tribunal observed that Mr Efobi “did not satisfy the conscientious requirements of the respondent’s recruiters and hiring managers as he failed to demonstrate that he was a suitable, or the best, applicant, non-withstanding his academic achievements”
The Court of Appeal agreed with the employment tribunal that “there was no evidential basis for inferring that the reasons why his applications failed when internal decision makers were involved was for race related reasons” and that race discrimination “was not seriously advanced as the reason with respect to the posts where external recruitment officers were involved”.
What does this mean for me?
This important case is reassuring for employers as it makes clear that a claimant must do most of the initial leg-work to set out a prima facie case of discrimination before an employer is obliged to put forward a detailed explanation for their actions.
In practice, this does not change the way that employers and representatives should prepare for employment tribunal hearings as, in most cases, a full hearing of a claim will involve hearing both the claimant’s factual arguments and the employer’s explanation for what has occurred. However, this decision does mean that claims of discrimination that do not have a sound factual basis are less likely to succeed at tribunal. This may be of some comfort to organisations that frequently face speculative claims or claims from serial litigants.
After a period of uncertainty sparked by the EAT decision, this Court of Appeal Judgement is a welcome re-statement of established legal principles.
It is also a reminder that, while an employment tribunal will often quite properly seek to support an unrepresented claimant; such support should have limits, “lest the tribunal is perceived to be losing its impartiality and favouring one side”. The Court of appeal stressed that, in cases such as this “where the allegations of discrimination [are] mere assertion” employment tribunals should continue to apply a rigorous two step approach to establish at an early stage that a claim has little factual foundation.
Weightmans represented the respondent, Royal Mail Group Ltd, in this case. Liverpool Partner Steve Peacock, email@example.com appeared for the respondent in the EAT. If you have any questions about the implications of this decision for your organisation or need support with a complex discrimination issue, please do not hesitate to contact Steve or speak to your usual Weightmans advisor.