Greetings and welcome back to your weekly case law update. Last week was our monthly employment law update with features on ET statistics, equal pay and extension of pregnancy/maternity discrimination rights. Meanwhile, our previous case law update concerned negligence when handling an employee’s company property.
In this week’s case law update we focus on race discrimination. Race is one of the characteristics protected from discrimination under the Equality Act 2010.
In our previous case of Garredu v London Underground Ltd, concerning religion/belief discrimination, we examined the many forms discrimination can take. One such form is direct discrimination under section 13 of the Equality Act. Direct discrimination occurs when an employer treats an employee less favourably because the employee has a protected characteristic.
In direct discrimination cases there is a reversal of the burden of proof. In practise this means that if the employee can establish a potential case of discrimination the burden of proof then shifts onto the employer to explain why the treatment wasn’t discriminatory. A failure to give a satisfactory explanation may result in the Tribunal drawing an adverse inference that the treatment was discriminatory.
Therefore the question this week is:
Should an employer draw adverse inferences when an employer does not put forward any evidence about comparators?
Mr Efobi, the Claimant, was an Irish national of Nigerian descent who worked as a postman for the Royal Mail Group Ltd, the Respondent. The Claimant held graduate and post-graduate qualifications in IT related disciplines including forensic computing.
The Claimant aspired to secure an IT or managerial role at the Respondent and applied for over 22 positions in IT roles. The Claimant was unsuccessful in each of these applications. Following some other race related grievances, the Claimant issued ET proceedings including a claim for direct race discrimination that the Respondent did not promote him because of his race
The Claimant was self-represented and did not seek disclosure on any documents relating to the race or qualifications of the successful applicants. The Respondent did not disclose any such documents and relied on the Claimant’s poor-quality application forms as the reason for his applications being unsuccessful.
The ET held the Claimant had not established a potential case of discrimination and thus the claim was not made out before the burden of proof shifted onto the Employer. As such, no adverse inference should be drawn on the Employer’s failure to disclose information on the successful applicants.
The Claimant appealed and the EAT allowed the appeal and held that the adverse inferences should have been drawn. The Respondent appealed the EAT’s decision and the Court of Appeal allowed the appeal. The CoA held the Claimant had not been able to establish a case of discrimination as such the claim fell at the first hurdle and no inference should have been drawn from the Respondent’s lack of disclosure of comparators.
The takeaway point:
In this case no, as the Claimant had not shifted the burden of proof onto the Respondent, no adverse inference could be drawn on their failure to disclose information about successful applicants. However, had the Claimant shifted the burden, the ET would have been entitled to draw adverse inferences and the Respondent may have lost the claim.
As a side point, as this case has reached the Court of Appeal and received a moderate amount of media coverage – in legal circles anyway – it is highly likely that followers of the case will have reached their own conclusions about Royal Mail’s failure to disclose. Why would an employer not disclose applications if those applicants looked better suited on paper than the Claimant? A reputational point to consider when fighting litigation in the more high profile courts.