Royal Mail Group Ltd v Efobi [2021] UKSC 33

Mr Efobi, a Nigerian-born postman employed by Royal Mail, alleged direct racial discrimination after over 30 unsuccessful internal job applications. The Supreme Court considered whether section 136 of the Equality Act 2010 changed the burden of proof in discrimination cases. The Court held the statutory change was clarificatory, not substantive.

Facts

Mr Efobi, born in Nigeria and identifying as black African and Nigerian, was employed by Royal Mail as a postman from 2011. Holding computing qualifications from Irish universities, he made over 30 applications for management and IT positions within Royal Mail between December 2011 and February 2015, all of which were unsuccessful. In June 2015, he brought proceedings alleging direct and indirect discrimination and harassment on grounds of race.

Issues

Burden of Proof Issue

The principal issue was whether the change in wording from section 54A(2) of the Race Relations Act 1976 (“where… the complainant proves facts”) to section 136(2) of the Equality Act 2010 (“[i]f there are facts”) made a substantive change to the burden of proof in discrimination cases.

Adverse Inference Issue

The secondary issue was whether the employment tribunal erred in not drawing adverse inferences from Royal Mail’s failure to call witnesses who had actually dealt with the claimant’s job applications.

Judgment

On the Burden of Proof

Lord Leggatt, delivering the unanimous judgment, held that the change in statutory wording did not effect any substantive change in the law. The court explained that under the old provisions, as interpreted by case law, tribunals were already required to consider all evidence from all sources, not just the claimant’s evidence.

“What then is to be made of the fact that the wording of section 136 is different from the predecessor provisions? It seems to me that the answer lies in the fact that the previous wording was not entirely clear that what should be considered at the first stage was all the evidence, from whatever source it had come, and not only the evidence adduced by the claimant.”

Lord Leggatt emphasised that basic rules of evidence still apply:

“Any court or tribunal which is required to make findings of fact may face a situation in which it is unclear from the evidence whether something is a fact or not… In civil cases (including employment disputes) the general rule is that a court or tribunal must find that something asserted by a party is a fact if, and only if, its truth is shown by sufficient evidence to be more probable than not.”

On Adverse Inferences

The Court held that whilst no adverse inference can be drawn at the first stage from the employer not providing an explanation (as this must be ignored), adverse inferences of other kinds may potentially be drawn from failure to call actual decision-makers, depending on circumstances.

“Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances.”

However, on the facts, the tribunal was not required to draw any such inference.

Implications

This decision confirms that section 136 of the Equality Act 2010 maintains the two-stage burden of proof framework established under predecessor legislation. The claimant must still prove facts from which discrimination could be inferred before the burden shifts to the respondent. The judgment provides important clarification that the statutory wording change was intended to codify existing case law rather than alter substantive law. The decision also offers practical guidance on when adverse inferences may be drawn from absent witnesses in discrimination cases.

Verdict: Appeal dismissed. The Supreme Court held that the employment tribunal did not err in law either in its interpretation of section 136(2) of the Equality Act 2010 or in declining to draw adverse inferences from Royal Mail’s failure to call the actual decision-makers as witnesses.

Source: Royal Mail Group Ltd v Efobi [2021] UKSC 33