AIT 1. The Court of Appeal, House of Lords and Luxemburg authorities on race and sex discrimination in employment are to be used as a guide for the establishment of race discrimination in appeals to this Tribunal; but the questionnaire process available to employees is not applicable in the AIT, and nor is the Burden of Proof Directive. The requirement to identify a comparator (actual or hypothetical) who would be treated better than the appellant remains, however.
2. The demographic process of establishing disproportionate impact by statistics (as expounded in Jones v Chief Adjudication Officer) is an appropriate process for establishing indirect racial discrimination in the AIT; but care is necessary to ensure that the statistics are derived from comparable populations. The question is not whether different groups do comply equally with any condition but whether there is a difference between groups in whether they can comply.
3. The more complex the issue, the less likely broadly-based statistics are to be of help. Where all the requirements of a particular paragraph of HC 395 have to be satisfied, general figures relating to grants and refusals may reveal little about ability to comply with any individual condition.
4. Where statistics relate to self-selected groups (e.g. applicants for entry clearance) they are perhaps even less likely to assist.
5. Where the statistics do show a disproportionate impact on a particular racial or national group, the burden shifts to the Respondent to show that the condition in question is justifiable within the meaning of Balcombe LJ’s dicta in Hampson v DES, and Barry v Midland Bank Plc. The Tribunal must take into account the impact on the complainant (which is likely to include an assessment of the purpose for which admission or leave was sought) and the Respondent’s reasons for imposing the condition; it must strike a balance between them and give reasons for the decision it reaches.
[2006] UKAIT 00067
Bailii
England and Wales
Citing:
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 – Enderby v Frenchay Health Authority and Another ECJ 27-Oct-1993
Discrimination – Shifting Burden of Proof
(Preliminary Ruling) A woman was employed as a speech therapist by the health authority. She complained of sex discrimination saying that at her level of seniority within the NHS, members of her profession which was overwhelmingly a female . .
Lists of cited by and citing cases may be incomplete.
Updated: 22 July 2021; Ref: scu.245057
