Efobi v Royal Mail Group : Much Ado About Nothing?

Letwin, Jeremy and Rendall, Josephine (2022) Efobi v Royal Mail Group : Much Ado About Nothing? Modern Law Review, 85 (6). pp. 1504-1514. ISSN 0026-7961

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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.