Efobi v Royal Mail Group Ltd (Race Discrimination), Court of Appeal - United Kingdom Employment Appeal Tribunal, August 10, 2017,  UKEAT 0203_16_1008
|Resolution Date:||August 10, 2017|
|Issuing Organization:||United Kingdom Employment Appeal Tribunal|
|Actores:||Efobi v Royal Mail Group Ltd (Race Discrimination)|
Appeal No. UKEAT/023/16/DA
EMPLOYMENT APPEAL TRIBUNAL
FLEETBANK HOUSE, 2-6 SALISBURY SQUARE, LONDON EC4Y 8AE
At the Tribunal
On 4 July 2017
Judgment handed down on 10 August 2017
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
MR I EFOBI APPELLANT
ROYAL MAIL GROUP LIMITED RESPONDENT
Transcript of Proceedings
RACE DISCRIMINATION - Direct
RACE DISCRIMINATION - Burden of proof
The Employment Appeal Tribunal (``the EAT'') allowed an appeal from the Employment Tribunal (``the ET''). The Claimant claimed that the Respondent discriminated against him because of his race in rejecting job applications which he made.
The EAT held that the ET had misdirected themselves about the effect of section 136 of the Equality Act 2010 by treating it as imposing an initial burden of proof on the Claimant; but that even if the ET had not misdirected themselves in that way, errors in their approach to the evidence made their decision unsafe.
The claim was remitted to a different ET.
THE HONOURABLE MRS JUSTICE ELISABETH LAING DBE
The Appellant appeals against a unanimous Judgment of the Employment Tribunal (``the ET''). The ET consisted of Employment Judge Vincent Ryan, Mr Everett and Mr Bott. The Appellant is a black African who was born in Nigeria. He worked for the Respondent as a postman. He made 33 or so unsuccessful applications for IT-related jobs with the Respondent. Mr Coghlin, who represented the Appellant with Mr Pourghazi, told me during the appeal that that the ET decided during the course of the hearing that the Appellant would only be permitted to rely on the 22 job applications which are referred to in his ET1.
In a Decision sent to the parties on 24 March 2016 the ET held (among other things) that on 25 April 2015 the Respondent had ``engaged in unwanted conduct related to the claimant's race that had the purpose and effect of violating the claimant's dignity'' and had the effect of ``creating an intimidating, hostile, degrading humiliating and offensive environment for the claimant'' by refusing his request to finish his shift in time to go to a wedding, and that the Respondent had victimised him for bringing his discrimination claim in the ET by filming him surreptitiously on 22 October 2015, with a view to getting evidence for disciplinary proceedings which would expose him to the risk of dismissal, and by suspending his driving rights between 23 October and 15 December 2015.
The Appellant also claimed that the Respondent had discriminated against him directly on the grounds of his race in rejecting those job applications. The ET dismissed that claim and his remaining claims of harassment, of direct discrimination (which did not concern the rejection of his job applications), and of indirect discrimination. The Appellant appeals against the dismissal of his claims of direct discrimination relating to the rejection of his job applications. He does not appeal against the decision about the remaining claims of direct discrimination, indirect discrimination, or harassment. The Respondent does not appeal against the findings of harassment and victimisation.
I will refer to the parties as they were below. Paragraph references are to the ET's Decision, unless I say otherwise.
The Claimant was represented by Mr Coghlin and Mr Pourghazi of counsel, acting under the auspices of the Bar Pro Bono Unit, and the Respondent by Mr Peacock, a solicitor. I thank all the advocates for their helpful written and oral submissions. I thank Mr Pourghazi in particular for the useful spreadsheet which he produced summarising the evidence before the ET.
The issue is straightforward to state, but less easy to resolve. In short, it is whether the ET erred in law in failing to consider whether to draw an inference against the Respondent that the Respondent had discriminated against the Claimant on the grounds of his race in circumstances where there was at least some evidence from which such an inference could have been drawn, but in circumstances where the ET had accepted the Respondent's secondary evidence that the reason why the Respondent did not appoint the Claimant to any other posts for which he applied was not his race, but the poor quality of his generic application.
There are four broad grounds of appeal:
i. The ET erred in law in paragraph 2.21 of their Judgment in finding that no evidence was adduced about the race of the successful, shortlisted or longlisted candidates, and therefore in saying that it could not make any findings of fact by inference or otherwise about potential real or hypothetical comparators.
ii. The ET erred in law in paragraph 2.22 of their Judgment in finding that the Claimant had not proved facts from which the ET could conclude that the Respondent's recruiters or hiring managers knew of the Claimant's colour, nationality or ethnicity or that those factors or any of them were relevant to or influenced their decisions.
iii. The ET erred in law in dealing with the Claimant's 33 (or 22) applications in the aggregate. They should have considered each separately.
iv. The ET erred in law in paragraphs 2.4-2.34 and 4.2 of their Judgment in failing to take into account (or properly take into account or understand) various parts of the evidence in deciding what inferences to draw about direct discrimination.
The ET's Decision
The ET listed the agreed issues in paragraphs 1.1-1.5. At paragraph 1.2 the ET listed the several issues it had to decide about direct discrimination. The ET noted that there was an agreed draft Schedule of issues and of the law in the joint bundle of documents.
The Respondent, the ET found, is a large employer with various functions and departments, including IT. The Claimant is a citizen of the Republic of Ireland. He has degrees and diplomas, graduate and post-graduate, in Information Systems, a BSc Honours degree in Information Systems, and qualifications in forensic computing. His principal relevant qualifications were awarded by Trinity College Dublin and by Dublin City University.
When the Claimant came to the United Kingdom, he started work for Angard (on 5 October 2011). Angard provides services to the Respondent. The Claimant started work on fixed term contracts. On 27 August 2013, he was employed by the Respondent. Angard paid the Claimant a higher hourly rate than the Respondent paid. The ET held that there was no evidence that this was because of the Claimant's race. The Claimant wanted to move away from being a postman into computer-based or managerial work which was better suited to his qualifications and ambitions.
The Respondent advertises vacancies in various ways, including on sites on the internet. It receives thousands of applications, both from internal and external candidates. They must be submitted on-line on the Respondent's on-line form. The form asks for personal details. At the relevant time, external candidates were required to fill in the town and country of their birth. As well as filling in the form, a candidate had to upload a CV into the recruitment system (paragraph 2.5).
The Respondent has different recruitment systems for managerial and operational jobs. The ET described the system for recruiting people for managerial jobs in paragraph 2.6. A hiring manager gives a job brief to a recruiter which is used to inform the advertisement for the post. There are very large numbers of applications for nearly all posts. After the advertisement, the recruiter sifts all the applications to produce a long list. The recruiter then has a discussion with the hiring manager, who gives instructions to the recruiter to make a shortlist, based on the manager's requirements for the job. The aim is to produce a shortlist of four or five candidates. Time pressure means that managers only want to see a small number of candidates. They do not have time to read CVs of unsuitable candidates. The hiring managers are not concerned with the personal details of candidates.
Those on the shortlist are interviewed. A candidate who is shortlisted for an interview takes a test called ``Talent Q''. This has two parts: a psychometric test called ``Dimensions'', and skills and ability tests called ``Elements'' (described in more detail in paragraph 2.6.3). The manager who is hiring for a post decides which parts of Elements are to be used in the recruitment for that post.
The hiring manager is sent the candidates' CVs, the completed Dimensions and Elements tests and shortlist information. If, after the interview, the hiring manager is satisfied that there is a suitable candidate, and if the post is still open and within budget, an appointment is made. Sometimes a post is cancelled or postponed without an appointment, if circumstances have changed since it was advertised. Because there are so many applicants, feedback is not given as a matter of course, but it will be if a candidate asks for it.
The ET described the process for appointing operational staff in paragraph 2.7. All applicants take an on-line Talent Q test called ``Aspects''. It is a test which a candidate passes or fails. Only the top scorers are interviewed.
On-line application forms can be viewed by recruiters and hiring managers but they do not normally look at them. The personal information is collected at the start of the process so that it is available to be used later if it is needed. It is only needed for the successful candidates. It is used to check a candidate's ability to work in the United Kingdom and to enable security checks to be done (paragraph 2.8).
In paragraph 2.9 the ET explained that there is a difference between the approach towards internal and external candidates. The former do not need to provide information about town and country of birth on the application form because the...
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