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 discrimination complaints of discrimination more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. If there is a finding of discrimination and a difference of race and then an inadequate or unsatisfactory explanation by the employer to the discrimination, usually the legitimate inference would be that the discrimination was on racial grounds.’ As to overturning a tribunal decision: ‘The Appellate Tribunal should interfere only if the award by the [Employment] Tribunal is so out of the normal run that it can properly be described as a wholly erroneous estimate of the damage suffered by the complainant’.’
May LJ said that he had not found the decision in Khanna satisfactory and: ‘In these cases of alleged racial discrimination it is always for the complainant to make out his or her case. ,; It is not often that there is direct evidence of racial discrimination, and these complaints more often than not have to be dealt with on the basis of what are the proper inferences to be drawn from the primary facts. For myself I would have thought that it was almost common sense that, if there is a finding of discrimination and of difference of race and then an adequate or unsatisfactory explanation by the employer for the discrimination, usually the legitimate inference will be that the discrimination was on racial grounds.’
May, Balcombe LJJ
[1988] IRLR 530, [1988] ICR 813
England and Wales
Cited by:
Cited – King v Great Britain China Centre CA 1991
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 . .
Cited – Vento v The Chief Constable of West Yorkshire Police (No 2) CA 20-Dec-2002
The claimant had been awarded damages for sex discrimination, including a sum of andpound;25,000 for injury to feelings. The respondent appealed.
Held: The Court of Appeal looked to see whether there had been an error of law in the employment . .
Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.183406
