Efobi v Royal Mail Group: Much Ado About Nothing?

Abstract

Following the Supreme Court's recent decision in Efobi v Royal Mail Group, claimants in employment tribunals must first prove a prima facie case of discrimination before the burden of proof falls on the respondent to provide a non‐discriminatory explanation for the impugned conduct. The two stages are separate. Tribunals cannot draw any inferences from a respondent's explanation (or lack of explanation) when deciding whether there is a prima facie case of discrimination. We argue that, in reaching this decision, the Supreme Court failed to tackle squarely the important normative question at the heart of the dispute: whether there should be constraints on the evidence courts may consider when adjudicating whether there is a prima facie case of discrimination. Had the Supreme Court confronted this normative question, the outcome of the case might have been different.