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 sex discrimination proceedings against employers – Claim decided by the Tribunal on basis of the ‘reverse burden of proof’ provisions of s. 63A of Sex Discrimination Act 1975 – Employer contends, relying on Oyarce v Cheshire County Council  ICR 1179:
(1) that s. 63A does not apply to claims of victimisation; and
(2) that in any event the statutory instrument by which it was inserted was ultra vires because the Burden of Proof Directive did not oblige the UK to apply the reverse burden of proof provisions to victimisation claims and that accordingly the powers conferred by s. 2 of the European Communities Act 1972 were not available
Employer also contends (a) that Tribunal in any event failed properly to apply the decision of the House of Lords in Derbyshire v St. Helens Metropolitan Borough Council  ICR 841; and (b) that the Tribunal was obliged to make an express finding whether the reason advanced by the employer for the way he had drafted the reference was genuine and had not done so.
(1) The ratio of Oyarce is peculiar to the Race Relations Act 1976 and does not extend to claims under other discrimination statutes.
(2) S. 63A of the 1975 Act is not ultra vires – Oakley Inc v. Animal Ltd  Ch 337 applied.
(3) While the Tribunal had referred unnecessarily to the decisions in Derbyshire and Chief Constable of West Yorkshire v Khan  ICR 1065, which are concerned specifically with the case of acts done by an employer to protect his position as a litigant, rather than focusing on the general principles deriving from Nagarajan v London Regional Transport  ICR 877, it had nevertheless asked and answered the right questions.
(4) In a case decided on the basis of s. 63A it was enough for the Tribunal to find (with such reasons as were appropriate) that the employer had not proved that he was not significantly influenced by the bringing of the previous proceedings.
Underhill J P
 UKEAT 0158 – 09 – 2903,  ICR 1008,  IRLR 572
Sex Discrimination Act 1975 63A, European Communities Act 1972
Cited – Oyarce v Cheshire County Council CA 2-May-2008
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 . .
Cited – E, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .
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 – Chief Constable of West Yorkshire Police v Khan HL 11-Oct-2001
The claimant was a police sergeant. After many years he had not been promoted. He began proceedings for race discrimination. Whilst those were in course, he applied for a post elsewhere. That force wrote to his own requesting a reference. In the . .
Cited – Cornelius v University College of Swansea CA 1987
A college declined to act on an employee’s transfer request or to operate their grievance procedure while proceedings under the 1975 Act, brought by the employee against the college, were still awaiting determination. The college was trying to . .
Cited – Swiggs and others v Nagarajan HL 15-Jul-1999
Bias may not be intentional
The applicant claimed that he had been denied appointment to a job with London Regional Transport because he had brought a number of previous race discrimination claims against it or associated companies. An industrial tribunal had upheld his claim . .
See Also – Bullimore v Pothecary Witham Weld etc EAT 21-Sep-2010
EAT SEX DISCRIMINATION – COMPENSATION
H, a partner in a firm of solicitors, PWW, by whose predecessor C had previously been employed gave an unfavourable reference to another firm, S, with whom she was . .
Cited – Deer v University of Oxford CA 6-Feb-2015
The claimant had previously succeeded in a claim of sex discrimination against the University, her former employer. She now appealed against rejection of her claims alleging later victimisation.
Held: Two appeals succeed, and those matters . .
These lists may be incomplete.
Updated: 24 February 2021; Ref: scu.406562