Glasgow City Council v Zafar

Under section 1(1) of the Race Relations Act 1976, less favourable treatment is determined by comparing how the alleged discriminator treated, or would have treated, another person in the same circumstances. The standard of a hypothetical reasonable employer is irrelevant. Unreasonable treatment, including conduct amounting to unfair dismissal, does not itself establish or presume differential treatment.

The complainant retains the burden of proving racial discrimination on the balance of probabilities. Tribunals should find the primary facts, draw proper inferences from all the evidence and avoid a formal shifting evidential burden. Where a difference in race and less favourable treatment point to possible discrimination, the absence or inadequacy of the employer’s explanation may justify a racial inference. It never compels that inference as a matter of law.

Mr Zafar, a British citizen of Asian origin, was dismissed after approximately ten years’ employment as a social worker with Strathclyde Regional Council. He brought several Industrial Tribunal proceedings alleging racial discrimination, victimisation and unfair dismissal. The Tribunal rejected his wider allegations but found that the manner of his dismissal was unfair under the Employment Protection (Consolidation) Act 1978 and racially discriminatory under section 1(1) of the Race Relations Act 1976.

The Employment Appeal Tribunal dismissed the local authority’s appeal on both issues. Glasgow City Council, as successor to Strathclyde Regional Council, appealed only the racial discrimination finding. The Second Division of the Court of Session allowed that appeal and set the finding aside: 1997 S.L.T. 281. Mr Zafar appealed to the House of Lords.

The central issues were whether unreasonable treatment could itself support a presumption of less favourable treatment and whether the absence of a satisfactory non-racial explanation compelled an inference that the treatment was on racial grounds.

1. Appeal dismissed unanimously. Lord Browne-Wilkinson delivered the leading speech. Lord Slynn of Hadley, Lord Lloyd of Berwick, Lord Hope of Craighead and Lord Clyde expressly agreed with his reasons. The Industrial Tribunal’s finding of racial discrimination could not stand.

2. Per Lord Browne-Wilkinson, section 1(1) of the Race Relations Act 1976 required comparison between the complainant’s treatment and the treatment which the same alleged discriminator gave, or would have given, another person in the same circumstances. The conduct of a hypothetical reasonable employer was irrelevant. An unreasonable employer might treat another employee equally badly. Accordingly, unreasonableness for unfair-dismissal purposes under the Employment Protection (Consolidation) Act 1978 cast no light on whether the complainant had received less favourable treatment.

3. The Tribunal had therefore drawn an inadmissible inference when it presumed differential treatment merely because the local authority’s conduct fell far below reasonable standards. Its racial discrimination finding rested solely on that invalid basis, so the House did not consider whether other evidence might have supported a finding of less favourable treatment.

4. Lord Browne-Wilkinson approved the evidential guidance given in King v Great Britain-China Centre [1991] IRLR 513. The complainant retained the burden of proving discrimination on the balance of probabilities. Since direct evidence was unusual, tribunals should find the primary facts and draw such inferences as were proper from all the evidence. A difference in race coupled with less favourable treatment might prompt examination of the employer’s explanation. The absence or inadequacy of an explanation could make a racial inference legitimate, but the inference remained one of fact rather than law. A formal concept of a shifting evidential burden was unnecessary and unhelpful.

5. The Tribunal had rejected allegations of earlier racial prejudice but nevertheless held that it had “no choice” once no satisfactory non-racial explanation was accepted. That was an error of law. Lord Browne-Wilkinson stated that his earlier remarks in Khanna v Ministry of Defence [1981] I.R.L.R. 331 and Chattopadhyay v Headmaster of Holloway School [1981] I.R.L.R. 487, suggesting that such an inference should be drawn, put the matter too high and should not be followed. The Court of Session’s order setting aside the racial discrimination finding remained in force. The separate unfair-dismissal finding was not before the House.

1. House of Lords: In Glasgow City Council v Zafar [1997] 1 WLR 1659, the House unanimously dismissed Mr Zafar’s appeal and upheld the removal of the racial discrimination finding.
2. Court of Session, Second Division: The court allowed the local authority’s appeal and set aside the Industrial Tribunal’s finding of racial discrimination: 1997 S.L.T. 281.
3. Employment Appeal Tribunal: The Tribunal dismissed the local authority’s appeals against the findings of unfair dismissal and racial discrimination.
4. Industrial Tribunal: The Tribunal rejected Mr Zafar’s wider complaints but held that his dismissal was procedurally unfair and racially discriminatory. The local authority did not pursue a further appeal against the unfair-dismissal finding.