Race Discrimination and the Burden of Proof

Recent case law regarding the burden of proof in discrimination claims made under the Race Relations Act 1976 has led to much confusion.

In Okonu v G4S Security Services (UK) Ltd., the Employment Appeal Tribunal (EAT) held that the rules in Section 54A of the Act on the reverse burden of proof – whereby 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 – only apply to discrimination on the grounds of race, ethnic or national origin and not to cases of discrimination on grounds of colour or nationality because the latter grounds are not covered by the EC Race Directive.

However, in the more recent case of Chagger v Abbey National plc and Hopkins, the EAT rejected this reasoning and held that the reverse burden of proof rules must have been intended to apply to discrimination on the grounds of colour. In its view, it was inconceivable that the Directive was not intended to apply to discrimination which is expressed as being on the ground of colour and that such discrimination is, in practice, necessarily an aspect or manifestation of discrimination based on racial or ethnic origin. When someone brings a claim on the basis of ‘colour discrimination’, they are in fact complaining of discrimination on the ground of race and ethnic origin, whether they appreciate it or not.

Aston Bond says, "Whether this conflicting decision has brought clarity to the situation is doubtful and we can expect the issue to be the subject of further analysis before the confusion is dispelled."

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