CM October 2021

HR MATTERS
Guiding Light
New guidance on hybrid working and the
initial burden of proof.
NEW guidance on hybrid
working has been
published by ACAS to
help employers consider,
discuss, and introduce
this flexible way of
working in their workplace.
Hybrid working is a type of flexible
working where an employee splits their
time between the workplace and working
remotely. The new guidance is timely
given that a recent study published by
ACAS shows that over half of employers
in Great Britain expect an increase
in demand for flexible working from
employees after the country comes out of
the coronavirus pandemic.
ACAS’s new hybrid working guidance
AUTHOR – Gareth Edwards
advises employers to consult widely
with staff or their representatives about
introducing hybrid working while
discussing practical considerations such
as regular communication, technology,
performance management and health
and safety.
It also suggests creating a hybrid
working policy to establish which roles
are eligible, how someone can request
it and any principles such as allowing
remote working for a maximum number
of days a week.
Further, ACAS recommends ensuring
staff who are working remotely are
not excluded and have access to the
same opportunities as those in the
workplace such as team-building
The initial burden of proof
IN Royal Mail Group Ltd v Efobi, the Supreme
Court has confirmed that in discrimination
claims, the claimant bears the initial burden of
proof to establish facts from which an inference
of discrimination can be drawn.
Mr Efobi is a black Nigerian and citizen of
Ireland. He was employed as a postman by Royal
Mail Group Limited (RMG) and over a period
of three years he applied for over 30 IT posts
with RMG. He made the applications online
and accompanied each one with a CV detailing
his graduate and post-graduate qualifications
in information systems. He uploaded a
generic CV for each application, including
details of his town and country of birth
on his application (although not required
to do so). He did not tailor his application.
He was unsuccessful on every occasion and
subsequently brought various claims, including
direct race discrimination.
At the employment tribunal hearing, RMG
did not call as witnesses any of the recruiters
or managers who were involved in processing
Efobi’s applications, instead calling on managers
who were familiar with the recruitment process
generally. Nor did it provide any evidence as to
the race and national origins of other applicants
for relevant posts.
The employment tribunal dismissed Efobi’s
race discrimination claims on the basis that he
had not proved the facts from which it could
conclude that discrimination had occurred.
For example, he had not provided evidence to
demonstrate that the successful applicants were
appropriate comparators.
activities, training and development.
Other considerations include making
sure decisions around whether to approve
a request for hybrid working are fair
and transparent, and that other forms
of flexible working that could work as
possible alternatives can be discussed
with employees; thinking about training
line managers and staff to help them
prepare for and manage hybrid working;
and considering a trial period to see if it
works and if any further adjustments to
arrangements are needed.
Such guidance may be helpful given
that employers are likely to have to deal
with an increasing number of flexible
working requests from employees in the
coming months.
The Employment Appeal Tribunal (EAT),
however, allowed Efobi’s appeal, and held that
the tribunal had misdirected itself as to the
effect of section 136(2) Equality Act (EqA), when
it concluded that it was for Efobi to prove a
prima facie case of discrimination.
According to the EAT, the proper interpretation
of section 136(2) was for the tribunal to consider
all the evidence, rather than only to consider
Efobi’s evidence, meaning there was no burden
on the claimant at all.
This decision was overturned by the Court
of Appeal and Efobi appealed to the Supreme
Court. The Supreme Court rejected the EAT’s
interpretation of section 136(2) EqA and its
decision confirms that the change in the wording
in the EqA did not change the law. Therefore, the
burden of proof will not shift to the employer to
explain the reason for the alleged unfavourable
treatment of the claimant unless the claimant
is able to prove, on the balance of probabilities,
facts from which the tribunal could conclude
(in the absence of an adequate explanation) an
unlawful act of discrimination had occurred.
Efobi’s second ground of appeal was that
the employment tribunal had failed to draw
adverse inferences from RMG’s failure to call
any decision-makers as witnesses. The Supreme
Court held that tribunals should be free to draw
(or refuse to draw) inferences from the facts of
the case using their common sense, rather than
just referring to legal rules.
Gareth Edwards is a partner in the employment
team at VWV. www.gedwards@vwv.co.uk
Advancing the credit profession / www.cicm.com / October 2021 / PAGE 50