Oyarce v Cheshire County Council
The Court of Appeal decided, unanimously, that the reverse burden of proof which applies to direct and indirect race discrimination claims, does not apply to claims of victimisation.
The claimant, Mrs Oyarce, brought proceedings against her employer Cheshire County Council in relation to its failure to give her the opportunity to apply for a vacancy. One of her claims was that a member of the promotion interview panel had victimised her by treating her less favourably because of earlier complaints of race discrimination against the council.
The tribunal upheld the claimant’s complaint of victimisation on the basis that Oyarce had presented a ‘prima facie’ case of victimisation, and the council had failed to provide evidence to prove that this had not been the case. In doing so, the tribunal applied the reverse burden of proof, provided for under section 54A of the Race Relations Act 1976 (RRA).
Section 54A provides that once an employee establishes a prima facie case of discrimination on grounds of race or ethnic or national origins or harassment, the burden of proof shifts to the employer to prove that it did not commit that act of discrimination or harassment. If the employer fails to satisfy that burden of proof, the tribunal must uphold the employee’s complaint.
The council appealed the tribunal’s decision on the victimisation claim, arguing that section 54A does not apply to victimisation cases. The Employment Appeal Tribunal (EAT) agreed with the council. Oyarce then appealed to the Court of Appeal.
The issue to be decided by the Court of Appeal was a matter of construction of section 54A of the RRA. This section was introduced into UK law to give effect to article 8 of the EU Race Directive, which provides for a reversed burden of proof in discrimination cases.
With regard to the construction of the directive, the Court of Appeal agreed with the EAT’s construction of section 54A and also held that there was “nothing in the wording of the directive to suggest that the reversal of the burden of proof was intended to apply also to the distinctly different case of victimisation”.
The Court of Appeal refused Oyarce leave to appeal to the House of Lords and declined to make a reference to the European Court of Justice.
The Court of Appeal’s decision creates a two-tier approach to claims under the RRA claims of discrimination on grounds of race or ethnic or national origins are subject to the reverse burden of proof, whereas claims of victimisation are not.
This has key implications for both persons seeking to bring victimisation claims, and those defending such claims. The burden of proof now rests squarely with the claimant. Arguably, this decision has lessened the task of defending victimisation claims it is generally seen to be harder to disprove an alleged act (the reverse burden of proof) than it is to defend a clearly made allegation.
Although this decision makes the position in respect of race victimisation different to other forms of discrimination, the apparent loophole is likely to be addressed by the Single Equality Bill, which proposes consolidating all discrimination and equality laws into a single, more harmonious piece of legislation.
By Heather Marsh, associate, Addleshaw Goddard