The court considered the nature of evidence which will be available to tribunals considering a race discrimination claim.
Held: A complainant must prove his or her case on the balance of probabilities, but it is unusual to find direct evidence of racial discrimination, and a case will usually depend on what inferences can properly be drawn. If a claimant can show that he has been less favourably treated than comparable individuals from a different racial group, then the court will look to the alleged discriminator for an explanation. If no explanation is put forward or if the explanation is inadequate or unsatisfactory, it will be legitimate to infer that the discrimination was on racial grounds. Discrimination may not be ill-intentioned but merely based on an assumption that ‘he or she would not have fitted in.’ The case will usually depend on what inferences it is proper to draw from the primary facts found by the tribunal, including any inferences which it is just and equitable to draw in accordance with the section from an evasive or equivocal reply to a questionnaire. A finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. This is not a matter of law but, ‘almost common sense.’ ‘The outcome of the case will therefore usually depend on what inferences it is proper to draw from the primary facts found by the tribunal . .
Though there will be some cases where, for example, the non-selection of the applicant for a post or for promotion is clearly not on racial grounds, a finding of discrimination and a finding of a difference in race will often point to the possibility of racial discrimination. In such circumstances, the tribunal will look to the employer for an explanation. If no explanation is then put forward or if the tribunal considers the explanation to be inadequate or unsatisfactory it will be legitimate for the tribunal to infer that the discrimination was on racial grounds
It is unnecessary and unhelpful to introduce the concept of a shifting evidential burden of proof. At the conclusion of all the evidence the tribunal should make findings as to the primary facts and draw such inferences as they consider proper from those facts.’
Neill LJ
[1992] ICR 516, [1991] EWCA Civ 16, [1991] IRLR 513
Bailii
Race Relations Act 1976 65(2)(b)
England and Wales
Citing:
Cited – North West Thames Regional Health Authority v Noone CA 1988
The question of whether an employer has acted in a racially discriminatory is to be concluded not as a matter of law, but from his behaviour and almost as a matter of common sense.
May LJ said: ‘As there is not often direct evidence of . .
Cited by:
Cited – Allen v Oliver Group Plc and Another CA 24-May-2001
The appellant appealed a finding against her by the ET and EAT on her claim of race discrimination. The tribunal found that the applicant had been treated less favourably, but had been unable to find any evidence that this had its origins in her . .
Cited – A Bhadhuri v Doncaster Metropolitan Borough Council EAT 30-Apr-2002
EAT Race Discrimination – Jurisdiction
The applicant challenged dismissal of his claim for direct race discrimination by his employers. He said that his employers failure to support his career progression . .
Cited – Scott v London Borough of Hillingdon CA 18-Dec-2001
The claimant’s claim for race discrimination had been dismissed on appeal by the EAT. He now appealed to restore the judgement of the employment tribunal. He had begun an action against his employer, and then unsuccessfully applied for employment . .
Updated – Barton v Investec Henderson Crosthwaite Securities Ltd EAT 6-Mar-2003
EAT Sex Discrimination – Inferring Discrimination
The claimant sought compenstion for sex discrimination. She appealed a finding of a material factor justifying the difference in pay.
Held: The new . .
Cited – European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Cited – Qureshi v Victoria University of Manchester EAT 21-Jun-1996
The Industrial Tribunal only has jurisdiction to consider and rule upon the act or acts of which complaint is made to it. The questions on a complaint of race discrimination are: (a) Did the act complained of actually occur? (b) If the act . .
Cited – Chapman and Another v Simon CA 1994
The Industrial Tribunal has no jurisdiction to consider and rule upon other acts of racial discrimination not included in the complaints in the Originating Application.
Racial discrimination may be established as a matter of direct primary . .
Approved – Strathclyde Regional Council v Zafar; Zafar v Glasgow City Council HL 16-Oct-1997
The absence of any other explanation for the unfair dismissal of a black worker, does not of itself and inescapably lead to finding of race bias, or racial discrimination. He had been dismissed following complaints of sexual harassment, later found . .
Cited – The Law Society v Kamlesh Bahl EAT 7-Jul-2003
EAT Sex Discrimination – Direct
The complainant had been suspended from her position as Vice President of the Law Society. The Society and its officers appealed findings of sex and race discrimination . .
Cited – Deman v The Association of University Teachers and Others EAT 2-Jul-2003
EAT Practice and Procedure – Estoppel
EAT Practice and Procedure – Estoppel or Abuse of Process. . .
Cited – Madden v Preferred Technical Group CHA Limited, Guest CA 27-Aug-2004
The claimant had made a complaint of race discrimination. The complaint was dismissed. Some time later the company dismissed him, and he again lodged a complaint. The tribunal found him unfairly dismissed, but again not discriminated against.
Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Approved – Glasgow City Council v Zafar SCS 1997
The house considered the burden of proof in cases involving allegations of discrimination.
Held: Lord Morison ‘The requirement necessary to establish less favourable treatment which is laid down by section 1(1) of the Act of 1976 is not one of . .
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Applied – Law Society v Bahl CA 30-Jul-2004
The claimant had succeeded before the employment tribunal in her claim of race discrimination by the respondent and senior officers. She now appealed the reversal of that judgment. The claimant asked the tribunal to draw inferences of discrimination . .
Cited – Madarassy v Nomura International Plc CA 26-Jan-2007
The claimant appealed against adverse findings on her claims of sex discrimination. The court considered questions arising from the provisions relating to the transfer of the burden of proof in a discrimination case.
Held: Questions of the . .
Cited – Divine-Bortey v London Borough of Brent CA 14-May-1998
The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .
Cited – Pricewaterhouse Coopers Llp v Popa EAT 12-Oct-2010
pwc_popaEAT10
EAT RACE DISCRIMINATION
Post employment
Burden of Proof
In determining a claim of post termination victimisation under the Race Relations Act 1976 the Employment Tribunal did not fail to consider . .
Cited – Fecitt and Others v NHS Manchester EAT 23-Nov-2010
EAT VICTIMISATION DISCRIMINATION – Protected disclosure
S.47B of the Employment Rights Act 1996 provides that ‘A worker has the right not to be subjected to any detriment by any act, or any deliberate . .
Cited – Ugiabe v Tower Hamlets Primary Care Trust (Race Discrimination : Direct) EAT 9-May-2013
EAT RACE DISCRIMINATION – Direct
The Claimant’s appeal argued that the Employment Tribunal had failed to follow through the inferences that it had drawn as to the conduct of the Medical Director of the . .
Cited – Alexandra Healthcare NHS Trust and Another v Effa EAT 21-Apr-1998
The Trust appealed against a finding of race discrimination. He was a doctor working as a locum. He had been summarily dismissed in breach of the respondent’s own procedures and professional standards.
Held: The appeal succeeded. The tribunal . .
Cited – Gbokoyi v Bennett’s Eco-Inverter (Environmental Services) Ltd EAT 18-Jan-2002
The claimant appealed against dismissal of her unfair dismissal and of her maternity related discrimination claim.
Held: The appeal succeeded: ‘it does not appear that the tribunal gave any separate consideration to whether the pregnancy was . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Leading Case
Updated: 10 November 2021; Ref: scu.181617