MISSING WITNESSES: THE SUPREME COURT SAYS IT IS REALLY A MATTER OF COMMON SENSE
This blog has looked, many times, at the inferences that courts draw when witnesses do not give evidence at court. In Royal Mail Group Ltd v Efobi  UKSC 33 the Supreme Court made it clear that the principles involved are not rules of court.
“So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so.”
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The applicant had made numerous applications to become a postman, each was rejected. He brought proceedings alleging discrimination. The respondent had succeeded before the Employment Tribunal. One issue in the appeal at the Supreme Court was whether the tribunal should have drawn adverse inferences from the failure of the respondent to call evidence from those people who had rejected the applicant’s job applications. The respondent had called evidence from managers who explained the system in place for recruitment, but who could give no evidence in relation to the specific facts of the applicant’s case.
THE DECISION IN THE SUPREME COURT
The Supreme Court rejected the appeal. The inferences to be drawn were a matter for the tribunal and it could not be said to have erred.
THE JUDGMENT ON THIS ISSUE
At the hearing in the employment tribunal Royal Mail did not adduce evidence from anyone who had actually been responsible for rejecting any of the claimant’s job applications. Instead, they called as witnesses two managers who were familiar with the recruitment processes and how in general terms appointments were made. Those witnesses sought to explain the likely reasoning processes of the recruiters but they could not say what the actual reasons for the relevant decisions were. The claimant’s second ground of appeal is that the tribunal should have drawn adverse inferences from the failure to call the actual decision-makers. Counsel for the claimant further submits that the Court of Appeal wrongly held that drawing any such adverse inference was impermissible, when Sir Patrick Elias said at para 44:
“If the employer fails to call the actual decision-makers, he is at risk of failing to discharge the burden which arises at the second stage, but no adverse inference can be drawn at the first stage from the fact that he has not provided an explanation as Mummery LJ said in terms in para 58 of Madarassy …”
What Mummery LJ said in para 58 of Madarassy was:
“The absence of an adequate explanation for differential treatment of the complainant is not, however, relevant to whether there is a prima facie case of discrimination by the respondent. The absence of an adequate explanation only becomes relevant if a prima facie case is proved by the complainant. The consideration of the tribunal then moves to the second stage. …”
I think that care is needed in interpreting these statements. At the first stage the tribunal must consider what inferences can be drawn in the absence of any explanation for the treatment complained of. That is what the legislation requires. Whether the employer has in fact offered an explanation and, if so, what that explanation is must therefore be left out of account. It follows that, as Mummery LJ and Sir Patrick Elias said in the passages quoted above, no adverse inference can be drawn at the first stage from the fact that the employer has not provided an explanation. In so far as the Court of Appeal in Igen Ltd v Wong at paras 21-22 can be read as suggesting otherwise, that suggestion must in my view be mistaken. It does not follow, however, that no adverse inference of any kind can ever be drawn at the first stage from the fact that the employer has failed to call the actual decision-makers. It is quite possible that, in particular circumstances, one or more adverse inferences could properly be drawn from that fact.
The question whether an adverse inference may be drawn from the absence of a witness is sometimes treated as a matter governed by legal criteria, for which the decision of the Court of Appeal in Wisniewski v Central Manchester Health Authority  PIQR P324 is often cited as authority. Without intending to disparage the sensible statements made in that case, I think there is a risk of making overly legal and technical what really is or ought to be just a matter of ordinary rationality. So far as possible, tribunals should be free to draw, or to decline to draw, inferences from the facts of the case before them using their common sense without the need to consult law books when doing so. Whether any positive significance should be attached to the fact that a person has not given evidence depends entirely on the context and particular circumstances. Relevant considerations will naturally include such matters as whether the witness was available to give evidence, what relevant evidence it is reasonable to expect that the witness would have been able to give, what other relevant evidence there was bearing on the point(s) on which the witness could potentially have given relevant evidence, and the significance of those points in the context of the case as a whole. All these matters are inter-related and how these and any other relevant considerations should be assessed cannot be encapsulated in a set of legal rules.
There is nothing in the reasons given by the employment tribunal for its decision in this case which suggests that the tribunal thought that it was precluded as a matter of law from drawing any adverse inference from the fact that Royal Mail did not call as witnesses any of the actual decision-makers who rejected the claimant’s many job applications. The position is simply that the tribunal did not draw any adverse inference from that fact. To succeed in an appeal on this ground, the claimant would accordingly need to show that, on the facts of this case, no reasonable tribunal could have omitted to draw such an inference. That is, in its very nature, an extremely hard test to satisfy.
Where it is said that an adverse inference ought to have been drawn from a particular matter – here the absence of evidence from the decision-makers – the first step must be to identify the precise inference(s) which allegedly should have been drawn. In their written case on this appeal counsel for the claimant identified two such inferences: (i) that the successful applicants for the jobs for which the claimant unsuccessfully applied were of a different race or ethnic origin from the claimant; and (ii) that the recruiters who rejected the claimant’s applications (in all but two cases on paper without selecting him for an interview) were aware of his race when doing so.