King v Great Britain-China Centre

In a racial-discrimination complaint, the legal burden remains on the complainant throughout. A tribunal must decide the case on all the evidence and on the balance of probabilities. It is unnecessary and unhelpful to formulate the exercise as a shifting evidential burden.

Where primary facts show less favourable treatment and a racial difference, a tribunal may properly seek an employer’s explanation. If that explanation is inadequate or unsatisfactory, it may infer that the treatment was on racial grounds. An evasive or equivocal questionnaire reply may also support a just and equitable inference under section 65(2)(b) of the Race Relations Act 1976.

King v Great Britain-China Centre concerned an ethnic Chinese applicant who was not shortlisted for the post of Deputy Director. An industrial tribunal, by a majority, found that the Centre had unlawfully discriminated against her on racial grounds in its recruitment arrangements.

The Employment Appeal Tribunal allowed the Centre’s appeal. It held that the tribunal had wrongly placed on the Centre the burden of disproving racial discrimination, and ordered a rehearing before a different tribunal. The applicant appealed to the Court of Appeal. The central issue was whether the tribunal’s reasoning, read as a whole, had reversed the legal burden of proof or had permissibly drawn an inference from the primary facts and the Centre’s explanations.

1. Appeal allowed unanimously. Lord Justice Neill gave the substantive judgment, with whom Lord Justice Nourse and Sir John Megaw agreed. The industrial tribunal’s majority decision was restored.

2. The complainant bore the legal burden of proving unlawful racial discrimination on the balance of probabilities. Direct evidence will commonly be unavailable. The tribunal must therefore make findings of primary fact and draw such inferences as are proper from all the evidence.

3. A finding of less favourable treatment and a difference in race will often make it appropriate to seek an employer’s explanation. If the tribunal finds that no explanation is given, or that the explanation is inadequate or unsatisfactory, it may infer that the treatment was on racial grounds. This was an evidential evaluation, described as almost common sense, and did not transfer the legal burden of proof.

4. Section 65(2)(b) of the Race Relations Act 1976 permitted the tribunal to draw such just and equitable inferences as it thought proper from an evasive or equivocal questionnaire reply. That was one factor available in the overall assessment.

5. The tribunal’s references to the Centre having failed to demonstrate or prove matters did not, when its reasons were read as a whole, reveal a legal misdirection. It had correctly treated the applicant as bearing the burden, examined the Centre’s explanation for not shortlisting her, found that explanation unsatisfactory, and permissibly inferred racial discrimination. The Centre’s perversity challenge was not pursued.

• Court of Appeal: Allowed the applicant’s appeal, restored the industrial tribunal’s finding of unlawful racial discrimination, and awarded her costs.

• Employment Appeal Tribunal: On 5 February 1990, allowed the Centre’s appeal on the basis that the industrial tribunal had erred in law as to the burden of proof, and ordered a rehearing before a different tribunal.

• Industrial tribunal: On 25 August 1988, by a majority, upheld the applicant’s complaint of unlawful racial discrimination in the shortlisting process.