In a discrimination case, should a tribunal draw adverse inferences from the employer's failure to put forward any evidence about the comparators?
Not unless the Claimant has already discharged the burden on him to show a prima facie case of discrimination, held the Court of Appeal in Efobi v Royal Mail Group Ltd.
Mr Efobi is a black Nigerian with post-graduate qualifications in Information Systems and Forensic Computing. He was employed as a postman, but aspired to move into a management or IT role. He applied for many posts, always unsuccessfully, and complained of direct race discrimination.
Royal Mail did not put forward any evidence about the identity or qualifications of the successful candidates; nor did Mr Efobi, acting in person, seek discovery. The tribunal found that Mr Efobi had not shown facts from which discrimination could be inferred, and the claim therefore failed.
The EAT had concluded that the tribunal should have considered whether it should draw inferences from the Royal Mail's reticence about the successful candidates. The Court of Appeal disagreed: the burden was on Mr Efobi to prove his case at the first stage, and he had not provided the tribunal with sufficient information to allow it to identify the characteristics of the proposed comparator.
Thanks to Naomi Cunningham of Outer Temple Chambers for preparing this case summary.
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