Race Discrimination - Victimisation.

The Court of Appeal has confirmed (Oyarce v Cheshire County Council) that the burden of proof in victimisation claims made under Section 2 of the Race Relations Act 1976 remains with the employee. Upholding the conclusion of the Employment Appeal Tribunal (EAT), the Court ruled that the 'reverse burden of proof', contained in Section 54A of the Act, does not apply in victimisation claims.

Victimisation occurs when an employer treats an employee less favourably because he or she has previously complained that the employer has discriminated against them.

In 2003, the Race Relations Act 1976 was amended so that once an employee has made out a case that their employer has committed an act of discrimination, it is then necessary for the employer to prove otherwise in order to defend the claim. This is known as the reverse burden of proof and it puts a heavy onus on employers to defend allegations of discrimination.

Section 54A states that where the employee proves facts from which the Employment Tribunal (ET) could conclude that the employer has committed a discriminatory act, the ET is required to uphold the complaint unless the employer provides an adequate, non-discriminatory explanation for the treatment.

It had been assumed that the reverse burden of proof applied to harassment and victimisation claims as well as direct and indirect race discrimination cases. However, the Court of Appeal's ruling means that in claims of victimisation on the grounds of race, the burden of proof stays with the employee, putting the onus on them to prove their case rather than transferring it to the employer to defend theirs.

In another case (Okonu v G4S Security Services (UK) Ltd.) the EAT held that the reverse burden of proof also does not apply in cases of discrimination on the grounds of colour or nationality, because the EU legislation that led to the introduction of Section 54A concerned only discrimination on the grounds of race or ethnic or national origin.

The result of these two cases is that there now appears to be a somewhat unsatisfactory two-tier approach to the burden of proof in discrimination cases and the enforcement of such claims. The burden of proof reverses in claims for other types of discrimination and in some race discrimination claims, but not in those relating to victimisation or discrimination on the grounds of colour or nationality. This is a somewhat confusing situation for employers. We can help you ensure your workplace policies and contractual arrangements minimise the risk of a claim of discrimination arising.

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