King v Great Britain-China Centre

A complainant alleging racial discrimination bears the legal burden of proving the case on the balance of probabilities. Tribunals should assess all the evidence and draw proper inferences from established facts. Introducing a shifting evidential burden is unnecessary and unhelpful.

Less favourable treatment and a difference in race will often justify seeking an explanation from the employer. An absent or unsatisfactory explanation may support an inference of racial discrimination, depending on the circumstances. An evasive or equivocal questionnaire reply may also support a just and equitable inference. Tribunal reasons must be read as a whole when deciding whether references to an employer's failure to prove its explanation reveal a reversal of the burden of proof.

Karen King, an ethnic Chinese applicant, applied for the post of deputy director of the Great Britain-China Centre, a government-sponsored organisation promoting relations between Britain and China. She was not shortlisted, although her application met the published requirements. None of the five ethnic Chinese applicants was among the eight candidates invited for interview.

An industrial tribunal found by a majority that the Centre had unlawfully discriminated against her. It considered the selection criteria inconsistently applied and the Centre's explanations and questionnaire replies unsatisfactory. The Employment Appeal Tribunal rejected a challenge based on perversity but allowed the Centre's appeal because it considered that the tribunal had reversed the burden of proof. It ordered a rehearing before a different tribunal.

King appealed to the Court of Appeal. The central issue was whether the tribunal had improperly required the Centre to disprove racial discrimination or had permissibly inferred discrimination from the evidence as a whole.

Appeal allowed unanimously. Neill LJ delivered the judgment, with which Nourse LJ and Sir John Megaw agreed. The industrial tribunal's order was restored.

1. The complainant bore the legal burden of establishing racial discrimination on the balance of probabilities. Introducing a shifting evidential burden was unnecessary and unhelpful. At the conclusion of the evidence, the tribunal should find the primary facts, draw proper inferences and decide whether the complainant had proved the case.

2. Direct evidence of racial discrimination was unusual. Employers might fail to acknowledge discrimination even to themselves, and discrimination could arise from an assumption that an applicant would not fit in. Tribunals therefore needed to recognise the evidential difficulties facing complainants when assessing the evidence.

3. Less favourable treatment and a difference in race would often point to possible racial discrimination. In those circumstances, the tribunal could look to the employer for an explanation. An absent, inadequate or unsatisfactory explanation could legitimately support an inference of discrimination on racial grounds. This was an inference of common sense, rather than an automatic rule of law. The court used the approach expressed in North West Thames Regional Health Authority v Noone [1988] ICR 813.

4. Under section 65(2)(b) of the Race Relations Act 1976, an evasive or equivocal questionnaire reply could support any inference which the tribunal considered just and equitable, including an inference of unlawful discrimination. Such inferences formed part of the assessment of the primary facts.

5. The tribunal was entitled to seek an explanation because King's qualifications met the published requirements, she had been treated less favourably than shortlisted candidates, none of the ethnic Chinese applicants had been shortlisted, and the Centre had never employed an ethnic Chinese person. The majority found the explanation and questionnaire reply unsatisfactory. It was entitled to infer racial discrimination.

6. Read as a whole, the tribunal's reasons showed that it understood King's burden of proof. Its references to the Centre's failure to demonstrate or prove its explanation expressed a proper weighing of the evidence. They did not establish a reversal of the burden. No perversity challenge remained before the court.

The appeal was allowed with costs, and the industrial tribunal's order was restored.

• Court of Appeal: In [1992] ICR 516 , unanimously allowed King's appeal on 11 October 1991 and restored the industrial tribunal's order.
• Employment Appeal Tribunal: On 5 February 1990, allowed the Centre's appeal on the burden of proof, rejected its perversity challenge and ordered a rehearing before a different industrial tribunal.
• Industrial tribunal: By a majority, in its decision dated 25 August 1988, upheld King's complaint of unlawful racial discrimination. The chairman dissented.