Racial Discrimination
| Published date | 01 November 1983 |
| Date | 01 November 1983 |
| Author | Ian B. McKenna |
| DOI | http://doi.org/10.1111/j.1468-2230.1983.tb02550.x |
Nov.
19831
NOTES
OF
CASES
759
places the burden
of
proof on the plaintiff
8;
examination of that
decision of the High Court again shows the contrary to be true.@
And
The
Guildfovd,lo
which
is
the remaining authority cited by their
Lordships,
is
more explicitly misrepresented. While a passage from
Lord Merriman’s judgment there
l1
is prayed in aid in support of their
Lordships’ confident assertion that they
“
do not doubt
”
that the
plaintiff has the burden and that this is
“
well established,”
l2
Lord
Merriman was dealing not with mitigation at all
but
with remoteness,
where there has been a substantial degree of controversy on burden of
proof with the better view favouring a plaintiff’s onus.13
HARVEY
MCGREGOR*
RACIAL
DISCRIMINATION
IN
1978, Mr. Mandla, a Sikh, applied to enter his son at
a
private
school. The headmaster would not admit him unless he complied with
rules concerning the school uniform by removing his turban and
cutting his hair. Mr. Mandla’s claims for damages from the headmaster
and school and a declaration that they had committed an act of unlawful
discrimination were dismissed by Judge Gosling whose judgment was
upheld unanimously
in
the Court
of
AppeaL2 The House of Lords
unanimously allowed
Mr.
Mandla’s appeaLS
Although the
Lords
removed an eyesore from the landscape of
British case law
it
is disappointing that the House failed to take the
opportunity to clarify the law more fully particularly in view of the
practical irrelevance of the case to the plaintiffs and the fact that it was
effectively brought by the Commission for Racial Equality as a test
case.4
In a number of earlier cases it appeared to have been taken for
granted that Sikhs were
a
racial group for the purposes of the Race
Relations Act 1976. In
Singh
v.
Rowniree Mackintosh Ltd.b
and
Panesar
v.
Nestlt!
Co.
Ltd.6
the Scottish and the English
E.A.T.s
respectively
appeared to accept this impli~itly.~ The issue was more explicitly dealt
~ ~ ~~~~~~
(1982) 38 A.L.R. 424; 56 A.L.J.R. 211.
11983)
I
W.L.R.
585,
589E.
(1982) 38 A.L.R. 424, 426
at lines
8-9
and
26-27,428
at line
49
and
429
at line
1
;
56 A.L.J.R. 211, 212
col.
1
at
B
and
D, 213
col.
2
at
A.
lo
(19561
P.
364.
l1
Ibid,
370.
l2
119831
1
W.L.R.
585,
589D.
l3
MeGregor
on
Damages
(14th
ed.,
1980),
paras.
99
and
1519.
*Q.C.,
D.C.L.;
Fellow, New College, Oxford.
Race Relations
Act
1976 (R.R.A.),
s.
17
(a)
or
(6).
119821
3
All
E.R.
1108.
119831
1
All
E.R. 1062.
C.R.E.
acted
in
pursuance
of
R.R.A.,
s.
66(l)(a).
ti
119791 I.C.R. 544; [1979] I.R.L.R. 199.
I19801
I.C.R.
144; 11980) I.R.L.R. 64.
‘I
Each respondent raised successfully the justification defence under
R.R.A.,
s.l(l)(b)
(ii).
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