Discrimination claims and adverse inferences

25th February 2019

Discrimination claims and adverse inferences

Ordinarily, to bring a successful discrimination claim, a claimant must be able to show evidence of discrimination. If they are unable to evidence their claims, the claim fails. However, if they can the burden of proof shifts to the respondent (the employer). The respondent is then required to evidence an explanation to show that it did not discriminate.

In the absence of any evidence put forward by the employer, the tribunal may draw adverse inferences from the employer's failure to put forward any evidence.

The Court of Appeal in Efobi v Royal Mail Group Ltd recently found that where a claimant did not put forward sufficient evidence of discrimination, there was no obligation to draw adverse inferences against the employer when they also did not bring any further evidence in their defence.

The Claimant in this case was a postman, but repeatedly and unsuccessfully applied to other more senior management and IT roles within Royal Mail. He raised a complaint of direct race discrimination as a consequence of his unsuccessful applications.

The claimant was a litigant in person and did not request any evidence regarding the identity and qualifications of the applicants Royal Mail appointed to the roles he had applied for instead of him. Royal Mail also did not disclose that evidence. The initial employment tribunal therefore found that Mr Efobi’s claim failed.

When the claim progressed to the Employment Appeals Tribunal, they found that the original tribunal should have considered drawing inferences against Royal Mail, due to lack of disclosure about the successful candidates.

On the case reaching the Court of Appeal, they disagreed. Mr Efobi had not discharged his burden of proof in the first instance, and the original tribunal did not have sufficient information to determine the characteristics of those subsequently appointed instead of him. It was therefore inappropriate to draw inferences against Royal Mail, as Mr Efobi had not discharged his burden of proof.

What this means for employers

Not disclosing relevant evidence of the recruitment process, decision making rationale and the relevant qualifications of successful candidates was a risky strategy for Royal Mail. We would recommend that employers comply with their obligation to disclose all relevant evidence in litigation. If objective evidence can be disclosed in a timely way, this will put an employer in a stronger position to defend a claim, or negotiate a low settlement figure.


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