1/ The appeal in Efobi appears to be premised on s.136(2) not providing for a burden initially on C which can then shift to R, but a neutral burden which can then be satisfied by R showing it didn't contravene the EqA provision.
2/ Lord Leggatt comes out of the blocks by suggesting E's position (suggesting the change in wording of the burden of proof provision under the EqA as against the legacy Acts) is 'much ado about nothing'. This is going to be an uphill struggle for E.
3/ It's worth noting the reason why E is making this argument. His claim was that he failed in internal job applications due to his race. Royal Mail didn't put up as witnesses the decision-makers. The CA held it didn't have to, as the burden was on E at 1st before it could shift.
4/ Hence E needs a neutral application of s.136(2) from the off in order to be able to take any advantage of Royal Mail not putting up the particular decision-makers on the application processes complained about.
5/ Lady Arden is making this point now - asking whether what E is actually arguing about is whether there should be a duty to adduce evidence, rather than arguing about the burden of proof. E's counsel accepts that. @cowhoneybourne's eyes narrow a little for Royal Mail.
6/ Thus far my confusion about why permission was given hasn't been allayed.
There seems to be a new tradition (which I've not seen before) of Judges putting up their hand to ask a question. It's very quaint and reminiscent of primary school.
There seems to be a new tradition (which I've not seen before) of Judges putting up their hand to ask a question. It's very quaint and reminiscent of primary school.
7/ Lord Briggs is now confused about the real difference, describing s.136(2) as a ladder to climb to get to provisional success, with a requirement to prove certain facts before the Claimant can win.
I'm going to close the betting early on the appeal being dismissed.
I'm going to close the betting early on the appeal being dismissed.
I've lost the feed altogether now with a network error. Am I alone in this or have others got the same issue?
8/ My feed is back. It's probably not good news when Lady Arden visibly yawns this early on and when Lord Briggs suppresses/disguises a yawn by placing his hand over his face.
9/ Perhaps the most controversial statement of the appeal so far: (when explaining ET agenda tables) the suggestion that sometimes the London ET regions are advanced as against elsewhere. I can feel the earthquake of disagreeing heads shaking around the country, the SW especially
10/ I've skipped tweeting for an hour or so, but now on to @cowhoneybourne's submissions. Is there anyone else who can make every submission he makes sound so eminently reasonable?
11/ DRQC starts with the Madarassy point: simply saying I've been unsuccessful in an application and have a protected characteristic can't be enough to make out a claim. There's a balance to be struck to ensure the burden is easier for claimants but not oppressive on respondents.
12/ DRQC submits that what E is really doing is to try to impose an positive evidential burden/obligation on an employer to explain why someone with a protected characteristic didn't succeed in his applications.
13/ Shifting the burden to provide that positive duty to explain whenever there is a bare assertion would be in danger of making the task too onerous on respondents, noting that often the allegation will be against the respondent's former employee.
14/ To drive home that point, DRQC notes that the 30 job applications E invited the ET to look at spanned around 4 years, a number of separate recruiters, a number of separate managers & documents no longer available. E's case would've required RM to each recruiter & manager!
15/ The positive duty E calls for would transform the tribunal process, leading to far, far lengthier and more expensive trials. (I think DRQC can sit back at this point and light a cigar, as he's clearly won).
16/ Missed part of the post-lunch submissions, but Lord Leggatt appears keen on an analysis of C having a legal burden at stage 1 but not an evidential burden at stage 1. The rest of the panel doesn't appear keen from their facial expressions, neither is DRQC.
17/ Lord Hodge prefers the simple Madarassy position of looking at all evidence at stage 1 rather than going through contortions of distinguishing an evidential & legal burden. DRQC agrees - RM's position is Madarassy remains good law & is as plain as it gets - look at it all.
18/ DRQC notes that one gap in E's case is the lack of any assertion of what inference should be drawn from RM not calling the decision-makers. Hence even if there had been a position obligation to lead evidence, it doesn't automatically lead to any particular inference.
19/ What the ET had done though in ET was to positively conclude that E's race wasn't the reason for his failures in his applications. DRQC noted the info the ET did have re the application process & could look at in deciding whether discrimination could be inferred.
DRQC ends his tour de force & Charle Ciumei has 8 points in reply.
21/ In his 3rd point in reply, CC resiles from the positive duty to call evidence which he accepted when it was put to him by Lady Arden that was his case. DRQC's eyes understandably narrow. Lord Leggatt wants to ask a question (or go to the bathroom) but his hand up is missed.
22/ CC's final point is to suggest the ET could have made a number of inferences from RM not calling the decision-maker - inferences that the decision-makers knew of E's race or wasn't shortlisted because of his race (I struggle to see how that would be an appropriate inference)
Lord Leggatt hits the nail on the head. Why draw an inference that a decision-maker wasn't called because racist rather than he wouldn't recall the application among many, it's a weak claim & not worth the time & cost of calling him, C's case didn't exceed a bare assertion, etc
23/ This really is E's problem. Whilst it's right that discrimination can be hard to prove (as recognised in Igen), in this case there really was nothing shown more than that C was of a certain race & repeatedly failed in applications no matter who decided on them.
24/ CC ends by accepting that there would have to be a limit of only drawing inferences which are reasonable to draw in the circumstances. I can't see what adverse inferences could reasonably be drawn in E's favour on these particular facts. What am I missing?
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