The court was asked as to whether the provisions for the reversal of the burden of proof in discrimination cases was limited to findings of discrimination or extended also to issues of victimisation, and as to whether section 5A had properly incorporated the European Directive.
Held: The test in section 54A and in Igen v Wong does not apply to race victimisation claims. The Directive and the 1976 Act do not contain a single concept of discrimination which embraces direct and indirect discrimination on grounds of race or national origins and discrimination by way of victimisation. The legislation relating to race discrimination appears to differ from the legislation relating to sex discrimination and other forms of discrimination.
In victimisation claims based on discrimination, the statutory reversal of the burden of proof did not apply.
Judges:
Buxton LJ, Longmore LJ, Richards LJ
Citations:
[2008] EWCA Civ 434, [2008] ICR 1179, [2008] IRLR 653
Links:
Statutes:
Race Relations Act 1976 54A, Directive 2000/43/EC on equal treatment of persons irrespective of racial or ethnic origin
Jurisdiction:
England and Wales
Citing:
Appeal from – Oyarce v Cheshire County Council EAT 13-Jun-2007
EAT Victimisation
Burden of proof
Appeal – Perversity challenge on finding important for remedy.
Cross-Appeal – Did ET misdirect itself on burden of proof on victimisation claim.
As a . .
Cited – Coote v Granada Hospitality Ltd ECJ 22-Sep-1998
coote_granadaECJ1998
The employer had refused to provide a reference after the claimant had left the company after making a sex discrimination claim. She said this was victimisation.
Held: The state has a duty to protect workers against retaliation after . .
Cited – Munu v Great Ormond Street Hospital NHS Trust and others EAT 5-Nov-2007
EAT Sex Discrimination – Victimisation / Inferring discrimination
Practice and Procedure
Application of s54A of the Race Relations Act 1976 to victimisation claims: Oyarce v Cheshire County Council . .
Cited – Nadine Paquay v Societe d’architectes Hoet + Minne SPRL (Social Policy) ECJ 11-Oct-2007
Europa Social policy ‘Protection of pregnant women’ Directive 92/85/EEC ‘Article 10’ Prohibition on dismissal from the beginning of pregnancy to the end of maternity leave ‘Period of protection Decision to . .
Cited – St Helens Borough Council v Derbyshire and others HL 25-Apr-2007
The claimants were pursuing an action for equal pay. Several others settled their own actions, and the respondents then wrote direct to the claimants expressing their concern that the action ws being continued and its possible effects. The claimants . .
Cited – Great Ormond Street Hospital for Children NHS Trust v Patel EAT 22-Jun-2007
EAT Unfair dismissal – Reinstatement/re-engagement
Practice and Procedure – Adequacy of Reasons
Claimant was a radiographer who became unable to do clinical work as a result of illness and was made . .
Cited – Anyanwu and Another v South Bank Student Union and Another HL 24-May-2001
The university had imposed a new constitution on its students union, which resulted in the dismissal of the claimant. He sought to assert racial discrimination.
Held: The concept of ‘aiding’ somebody in committing discriminatory behaviour . .
Cited by:
Cited – Pothecary Witham Weld (A Firm) and Another v Bullimore and Another EAT 29-Mar-2010
EAT VICTIMISATION DISCRIMINATION
SEX DISCRIMINATION – Burden of Proof
Ex-employee given unfavourable reference – Claim that terms of reference were partly on account of her having previously brought . .
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 . .
Lists of cited by and citing cases may be incomplete.
Discrimination, European
Updated: 14 July 2022; Ref: scu.267403