Barclays Bank Plc v Kapur and Others

Date01 September 1996
Published date01 September 1996
DOI10.1177/135822919600100407
Subject MatterCase Notes
381
Barclays Bank Pic v Kapur And Others
(No.
2)
[1995]
IRLR
87
Both the Sex Discrimination Act 197 5 and, in this instance, the Race
Relations Act 1976, require the complainant to prove that either
direct
or
indirect discrimination took place within an area covered
by
the Act. In indirect discrimination cases the complainant must also
prove that a detriment was suffered. This case illustrates that at times
there is a thin dividing line between direct and indirect discrimina-
tion: in the latter instance even
if
different treatment is proved the
complainant has to demonstrate that the treatment experienced was
detrimental in comparison with that experienced by others. This case
also illustrates that a marginally less safe way
of
protecting public
money than investing it in turf accountancy is to construct an appel-
late system which allows a case to be unresolved until its 6th hear-
ing. The complainants, who were
of
Asian origin, had been
employed by Barclays Bank DCO in either Kenya
or
in Tanzania or,
in the case
of
a fifth complainant, had been employed by the Stand-
ard Bank
of
Kenya but had joined Barclays in the
UK
in similar cir-
cumstances and
on
similar conditions to the four Barclays DCO
employees. In the case
of
the Barclays DCO employees who had
been obliged to leave Kenya and Tanzania
on
Africanisation, a fin-
ancial package to compensate them for the loss
of
their pensions had
been offered and accepted.
All complainants had been offered and accepted employment by
Barclays in the
UK
but, despite repeated requests, the bank refused
to alter the condition that, having received compensation for previous
service, they would not be given credit for that service in their cur-
rent employment. The employees first took action under the Race
Relations Act in 1987. In 1990 the House
of
Lords ( (1991) IRLR
136) ruled that the refusal by Barclays to allow an employee's previ-
ous service to count towards a pension was
'an
act extending over a
period' within the meaning
of
s.
68(7)(b)
of
the Race Relations Act
1976. Therefore, although complaints
of
discrimination must normally
be lodged within three months, the application would not be consid-
ered out
of
time.
Because the House
of
Lords held in favour
of
the complainants
the case was remitted to the Industrial Tribunal to decide on its
merits. The tribunal accepted that there was insufficient evidence that
the decision by Barclays not to give them credit for their East
African service was taken on 'overtly racial grounds'. It concluded
that the decision was taken for one
of
three reasons: that Barclays
considered the compensation given adequate, secondly that they
objected to incurring a further financial burden and, thirdly, that they
did not wish to alter the rules
of
their existing pension fund.
On
the

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