Royal Mail Group Ltd v Efobi [2021] UKSC 33

July 26, 2021

David Flood, led by David Reade QC for the Respondent Royal Mail Group Ltd, has provided initial comments on the judgment in the Supreme Court Case of Royal Mail group Ltd v Efobi [2021] UKSC 33.

David commented:

“In Royal Mail Group Ltd v Efobi the primary issue for the Supreme Court was whether the new wording of Section 136 of the EqA 2010 changed the existing law that required the claimant in a discrimination case to prove, on the balance of probabilities, facts from which, in the absence of any other explanation, the employment tribunal could infer an unlawful act of discrimination.

Although there had been no talk of a change in the law before the EqA 2010, the EAT in Mr Efobi’s appeal pointed out that S.136, unlike the statutes and regulations it replaced, made no mention of the Claimant having to prove facts. It simply said, “where there are facts”. The EAT allowed Mr Efobi’s appeal, because, inter alia, in assuming the new law was the same as the old law, the Tribunal had erred, on a literal reading of Section 136, in requiring the Claimant to prove anything.

In dismissing the Appeal, the Supreme Court rejected Mr Efobi’s argument that the change of wording in S.136 EqA changed the law. They observed that even if there were no burden on a Claimant to prove facts, a claimant would still have to call evidence to prove any fact which he contended was true, and a tribunal would only find it as such if it preferred his evidence to the evidence of the respondent. There would still be a burden.  They concluded that the change in the wording merely reflected the cases before the Equality Act 2010 that had concluded that all evidence, not just that from the Claimant, should be considered when establishing whether there were primary facts from which an inference could be drawn. The new section reflected the clarified old law, it did not change it.”

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Link to transcript: