Employment Law Case Update: Efobi v Royal Mail Group Ltd

PLEASE NOTE: FOLLOWING THE CASE OF AYODELE V CITYLINK LTD AND ANOTHER, THIS CASE WAS OVERTURNED BY THE COURT OF APPEAL IN NOVEMBER 2017.  We will shortly be publishing an updated review of the case.

Mr Efobi, a black African born in Nigeria, worked as a postman for Royal Mail. He hoped to secure a role in IT and submitted approximately 33 job applications for internal IT roles but was unsuccessful. Royal Mail job applications have to be made online and at the time external applicants were asked to provide details of their town and country of birth. Mr Efobi voluntarily provided information on the application forms about his town and country of birth and therefore believed he was unsuccessful due to his race and brought a claim for direct race discrimination to the Employment Tribunal.

To fill a vacancy, the hiring manager would provide a job brief to a recruiter who would advertise the vacancy, sift through the applications and produce a list of possible candidates. The recruiter would then reduce this to a shortlist after discussing the manager’s requirement for the role with them. Shortlisted candidates were interviewed and required to take a test know as “talent Q”, made up of psychometric, skills and ability tests.

Mr Efobi uploaded a generic CV for each of the applications, although he did not need to do so as an internal applicant. The Tribunal found that Mr Efobi’s CV did not provide context and was not specifically tailored to any of the roles he applied for, and stated that Mr Efobi had no evidence of the race of the successful candidates, or those longlisted or shortlisted.

They could therefore not make any findings as to whether they were appropriate comparators for the purposes of Mr Efobi’s direct discrimination claim. Mr Efobi had also not proved that Royal Mail’s recruiters or hiring managers knew of his protected characteristic, or that this influenced the decisions not to shortlist, longlist, interview or appoint him for any jobs he applied for. The Tribunal concluded that Mr Efobi had failed to discharge the initial burden of proof.

Mr Efobi appealed to the Employment Appeal Tribunal which overturned the decision. The EAT was critical of Royal Mail’s failure to call any of the decision-makers to give evidence or to present evidence of the race or national origin of the successful candidates. Royal Mail had instead opted to “cut to the chase” and only present evidence of its reasons for rejecting Mr Efobi’s applications. As no direct evidence of the reasoning of the decision-makers was considered, the Tribunal had been forced to rely on second-hand evidence.

The impact of the decision will therefore be far-reaching as it changes the long established burden of proof principles set out in previous cases of Barton and Igen. It seems surprising that the significance in the change of wording in section 136 of the Equality Act 2010 has not been picked up on by the tribunals or court before this case. The case is also a reminder for respondents of the importance of calling at least one decision-maker as a witness.

This article is from our weekly Employment Law Newsletter published on 19/10/2017.  If you would like to receive this newsletter directly and be kept up to date with recent cases and Employment Law news, email events@warnergoodman.co.uk.