Oyarce v Cheshire County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Buxton,Lord Justice Longmore,Lord Justice Richards |
| Judgment Date | 02 May 2008 |
| Neutral Citation | [2008] EWCA Civ 434 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 May 2008 |
| Docket Number | Case No: A2/2007/1532 |
[2008] EWCA Civ 434
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE EMPLOYMENT APPEAL TRIBUNAL
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Buxton
Lord Justice Longmore and
Lord Justice Richards
Case No: A2/2007/1532
UKEAT/0557/06/DA
Miss Heather Williams QC and Mr Nicholas Toms (instructed by Thompsons) for the Appellant
Mr Paul Gilroy QC (instructed by GL Budd County Solicitor) for the Respondent
Mr Robin Allen QC, instructed by the Solicitor to the Equality and Human Rights Commission, for the Commission as Intervener
Hearing dates : 13 March 2008
The nature of the case
In this appeal we have to determine the true construction of section 54A of the Race Relations Act 1976 [the RRA], inserted into that statute by the Race Relations Act (Amendment) Regulations, in performance of the United Kingdom's obligation to transpose into domestic law Directive 2000/43/EC on equal treatment of persons irrespective of racial or ethnic origin [the Directive].
The features of the Directive and of the domestic legislation with which we are concerned are two fold. First, both make provision for the reversal of the burden of proof in certain cases. That process means that where the claimant proves facts from which the tribunal could conclude that the respondent had committed a relevant act against the respondent, the claimant wins unless the respondent proves that he did not commit such an act. Second, both forbid victimisation: that is, the exposure of a person to adverse treatment because they have made or been involved in a complaint about a breach of the equal treatment obligation. The dispute between the parties is as to whether in the RRA the reversal of the burden of proof only applies in cases where the complaint is of discrimination on grounds of race, as the EAT concluded; or whether, as the appellants contend before us, that requirement extends also to cases where the complaint is of victimisation.
This issue was discussed before us in purely general terms, without reference to the actual facts of the case. It is therefore not necessary to say more than that Mrs Oyarce brought proceedings against her employer complaining of a failure to give her the opportunity to apply for a particular post. She alleged that that failure was the result both of discrimination on grounds of race and of victimisation because of earlier proceedings that she had brought alleging racial discrimination. The employment tribunal upheld the latter complaint, in the course of doing so applying the reverse burden of proof.
The question before us, as it was before the EAT from whom this appeal is brought with the leave of that tribunal, is therefore to determine in what categories of cases that rule as to burden of proof applies. That requires close consideration of both domestic and Community legislation, the most significant parts of which I set out for convenience in the next section of the judgment.
The domestic and Community legislation
Part I of the RRA sets out “Discrimination to which Act applies”. The first case is set out under the cross-heading “racial discrimination” in section 1, sub-section (1)(a) of which addresses what is conventionally called “direct” discrimination and sub-section (1(b) “indirect” discrimination:
Racial discrimination
(1) A person discriminates against another in any circumstances relevant for the purposes of any provision of the Act if –
(a) on racial grounds he treats that other less favourably than he treats or would treat other persons; or
(b) he applies to that other a requirement or condition which he applies or would apply equally to persons not of the same racial group as that other but [which in practice affects one racial group in a disproportionate way]
In order to understand this provision it is necessary to look at the RRA's definition of racial grounds and racial group, which is to be found in section 3(1):
3(1) In this Act, unless the context otherwise requires-”
“racial grounds” means any of the following grounds, namely colour, race, nationality or ethnic or national origins;
“racial group” means a group of persons defined by reference to colour, race, nationality or ethnic or national origins, and references to a person's racial group refer to any racial group into which he falls
“Discrimination by way of victimisation” is then dealt with in section 2:
(1) A person (“the discriminator”) discriminates against another person (“the person victimised”) in any circumstances relevant for the purposes of any provision of this Act if he treats the person victimised less favourably than in those circumstances he treats or would treat other persons, and does so by reason that the person victimised has [inter alia]
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act
Section 2(1)(b) is specifically referred to in order to underline that while victimisation will, probably, take place against a person who has brought proceedings or taken other steps complaining of racial discrimination against himself, the prohibition extends to the victimisation of witnesses or supporters who may themselves have no complaint on racial grounds.
It will have been noted, importantly for the issues in this appeal, that victimisation is described in section 2 as a species of discrimination. That is further elucidated in another definitional sub-section, section 3(3):
In this Act-
references to discrimination refer to any discrimination falling within section 1 and 2; and
references to racial discrimination refer to any discrimination falling within section 1
We then come to the provision that is at the heart of this appeal, section 54A on “Burden of proof: employment tribunals”:
(1) This section applies where a complaint is presented under section 54 and the complaint is that the respondent-
(a) has committed an act of discrimination, on grounds of race or ethnic or national origins, which is unlawful by virtue of any provision referred to in section 1(1B)(a), (e) or (f), or Part 1V in its application to those provisions or
(b) has committed an act of harassment.
(2) Where, on the hearing of the complaint, the complainant proves facts from which the tribunal could, apart from this section, conclude in the absence of an adequate explanation that the respondent-
(a) has committed such an act of discrimination or harassment against the complainant, or
(b) is by virtue of section 32 or 33 to be treated as having committed such an act of discrimination or harassment against the complainant,
the tribunal shall uphold the complaint unless the respondent proves that he did not commit or, as the case may be, is not to be treated as having committed, that act.
It is only necessary to note at this stage that nothing turns in this appeal on the RRA's provisions about harassment.
As we have seen, the objective of these sections is to transpose into English law certain of the provisions of the Directive. The articles in question are articles 8.1 and 9, which read:
Article 8
Burden of proof
Member States shall take such measures as are necessary,
in accordance with their national judicial systems, to ensure that, when persons who consider themselves wronged because the principal of equal treatment has not been applied to them establish, before a court or other competent authority, facts from which it may be presumed that there has been direct or indirect discrimination, it shall be for the respondent to prove that there has been no breach of the principle of equal treatment.
Article 9
Victimisation
Member States shall introduce to their national legal systems such measures as are necessary to protect individuals from any adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment.
Here again, the only point that we need to note at this stage, though it is of importance for the arguments in this appeal, is that by article 2 the Directive addresses only discrimination based on racial or ethnic origin. It therefore omits other qualities that are covered by “racial grounds” in the RRA, namely colour, nationality and national origins.
The Directive and its transposition
The relevant terms of the Directive are set out above. It will have been noted that it deals with the reversal of the burden of proof and with victimisation in separate articles, and that article 8, relating to reversal of the burden of proof, is limited to cases complaining of a breach of the principle of equal treatment: that is, by article 2.1, direct or indirect discrimination based on race or ethnic origin. There is therefore 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.
That difference is underlined by the arrangement of the Directive. Articles 8 and 9 both appear in chapter II of the Directive, “Remedies and Enforcement”. There, they are presented as having parallel, not interrelated, effect: that is, that each separately is a weapon to protect the rights conferred by chapter I. It would have been possible to provide that the article 8 process should additionally be used to reinforce the protection from victimisation found in article 9; but what is in fact provided is that article 8 joins article 9 as another means of reinforcing the protection from...
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